FIRST SECTION
CASE OF FENECH v. MALTA
(Application no. 19090/20)
 
 
JUDGMENT
 
Art 3 (substantive) • Positive obligations • Adequate and proportionate measures during Covid-19 pandemic protecting health of detained applicant, lacking a kidney, and limiting spread of virus in the prison • Not shown that applicant within category of most vulnerable prisoners requiring separation from others
Art 3 (substantive) • Conditions of detention not amounting to inhuman or degrading treatment • Limitations imposed during exceptional and unforeseeable public health emergency on important health grounds, affecting all prison detainees and society at large • Alternative measures in place ensuring contact with family during suspension of visits
Art 2 (substantive) • Life • Applicability of Art 2 in certain Covid-19 related cases not excluded but assessed on an individual case basis • Applicant’s failure to substantiate real and imminent risk to his life from potential Covid-19 infection due to any acts or omissions by the State

 
STRASBOURG
1 March 2022
FINAL
 
01/06/2022
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Fenech v. Malta,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Péter Paczolay, President,
 Krzysztof Wojtyczek,
 Alena Poláčková,
 Gilberto Felici,
 Raffaele Sabato,
 Lorraine Schembri Orland,
 Ioannis Ktistakis, judges,
and Renata Degener, Section Registrar,
Having regard to:
the application (no. 19090/20) against the Republic of Malta lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Maltese national, Mr Yorgen Fenech (“the applicant”), on 6 May 2020;
the decision to give notice to the Maltese Government (“the Government”) of the complaints concerning Articles 2 and 3 and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 22 February 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the applicant’s conditions of detention in the Corradino Correctional Facility and whether the Maltese authorities took adequate measures to safeguard the applicant, who only has one kidney, against any potential future Covid-19 infection in the prison. THE FACTS
2. The applicant was born in 1981 and is currently detained at the Corradino Correctional Facility (‘CCF’), Paola. The applicant was represented by Mr W. Jordash, a lawyer practising in the Hague, the Netherlands. 3. The Government were represented by their Agents, Dr C. Soler, State Advocate, and Dr J. Vella, Advocate at the Office of the State Advocate. 4. The facts of the case may be summarised as follows. BACKGROUND TO THE CASE
5. The applicant is a businessman and the former head of the Tumas Group. He was arrested on his yacht on 20 November 2019 on suspicion of involvement in the murder of Maltese journalist Daphne Caruana Galizia in October 2017. On the same day he was released on bail. 6. On 30 November 2019 the applicant was arraigned before the Court of Magistrates acting as a court of criminal inquiry, and was accused of promoting, organising or financing an organisation with a view to committing a criminal offence, and complicity in wilful homicide. The applicant pleaded not guilty to the charges. He was remanded in custody and has since then been detained in the CCF, Paola, Malta. CONSTITUTIONAL REDRESS PROCEEDINGS
7. Following the refusal of a number of requests for release, the last ones (at the time) being rejected in April 2020 (see for details Fenech v. Malta (dec.) no. 19090/20, §§ 4-33, 23 March 2021) on 1 May 2020 the applicant instituted constitutional redress proceedings seeking a declaration of breaches of Articles 5 § 1 (c) and 5 § 3 and 5 § 4 of the Convention and asked the court to release him. The proceedings came to an end by a judgment of 23 November 2020 by which the Constitutional Court rejected the applicant’s complaints. The applicant had not raised any complaints under Articles 2 or 3 of the Convention during these proceedings, as he considered that constitutional redress proceedings would not be an appropriate remedy given their duration and the urgency of the matter. OTHER RELATED PROCEEDINGS
8. On 17 November 2020, the applicant’s legal counsel at the domestic level (CM) filed an application before the Court of Magistrates asking for the court’s protection in view of the prison authorities’ refusal to allow the lawyer even to show certain documents to the applicant. According to the applicant, in its decree of 23 November 2020 (not submitted to the Court), the court observed that a lawyer should not be prevented from taking documents with him to prison in order to discuss them with the detainee. However, the court also observed that, pursuant to Regulation 54(1) of the Prisons Regulations, any document may be read or examined by the Director if he suspects that such correspondence is unrelated to the proceedings. 9. On 23 November 2020 the applicant filed a further application before the Court of Magistrates by which he sought an order by the court to ensure confidential communications whilst he was in detention. He pointed out his lack of opportunity to communicate verbally or in written form with his lawyers, the lack of any opportunity to bring and show documents to him in prison, and to have a secure telephone line without recording. According to the applicant, in its decree of 24 November 2020 (not submitted to the Court), the Court of Magistrates declined to intervene, claiming that the issue was solely within the jurisdiction of the Director of Prisons, and the court had no jurisdiction to intervene on issues concerning the management of the prison or the implementation of the relevant legal provisions regulating the prison facility. With particular reference to the request for an unrecorded telephone line, the court denied the request, referring to Regulation 59 of the Prisons Regulations, which specifically allowed the monitoring and recording of all conversations in prison. 10. The applicant did not lodge constitutional redress proceedings complaining about the above. CONDITIONS OF DETENTION AT THE CORRADINO CORRECTIONAL FACILITY
11. In his application to the Court the applicant claimed that ever since he had been remanded in custody, he had endured a mixture of abusive, unsanitary and unhealthy conditions of detention as follows. 12. According to the applicant, from 30 November 2019 to 3 January 2020, he was placed in solitary confinement. During that time i) he was not given any warm clothing or socks, was left in a cell in used shorts and T-shirt provided by the prison and refused access to his own clothing; ii) he did not have proper bedding in his cell, which had a makeshift bed which was a piece of foam on the floor, without any sheets or pillows; iii) he was forced to use a hole in the ground of his cell as a bathroom, and there was no provision for flushing, and no hand basins to wash his hands; iv) the cell had only artificial lighting, and the neon tube was left on twenty-four hours and seven days a week; v) the applicant was only allowed sixty minutes out of his cell a day, within which time he was expected to eat, wash up, clean his cell, and finally take a break. During this break, the applicant was not allowed to go outside for fresh air or sunlight, and his movement was restricted to visiting another room; vi) he was not given any water or cigarettes from 10 p.m. ‑ 6 a.m.; and was not allowed access to any books from the library for the first twenty-seven days. 13. Since 4 January 2020 onwards, the applicant was moved to a dormitory, the conditions of which he also considered unsanitary and unhealthy. He shared his cell with four or five other detainees (whose identity could change). The cell measured 34.8 sq.m. (sic.) and each detainee had less than 4 sq.m. of free space. The detainees slept on bunk beds and shared a toilet, shower, and handbasin. They had to wash their clothes, dishes and plates in the same handbasin. The applicant was not allowed to use the gym for exercise. Instead, he was able to walk in a yard for thirty minutes per day. The remainder of the day, he was confined to the shared cell. 14. The applicant submitted that he was in daily contact with guards (who were rotated every week) and nurses and a chaplain (who also rotated). On any single day, the applicant was exposed to ten persons who left the prison at least weekly. The applicant was not allowed to go to mass or church; was subjected to CCTV surveillance in his cell; was deprived of family visits and was only allowed to speak to his family by Skype once (according to his application). While he was able to discuss legal issues with his counsel on a confidential basis in person, all legal documents were (temporarily) seized and could be read or photocopied by the prison authorities. Moreover, confidential meetings with the applicant and his lawyers were under surveillance through a CCTV. THE APPLICANT’S MEDICAL BACKGROUND
15. The applicant was, at the time of lodging the application in 2020, thirty-eight years of age and has only one kidney. On 12 April 2020, a Consultant Surgeon AA wrote a report (submitted to the Court at the time of lodging the application) stating that the applicant was “susceptible in any infective situation such as Corona virus infection leading to Covid-19 which has been shown to be associated not only with respiratory complications but also with the development of renal complications which will be aggravated in a patient like the applicant who at present already has a reduced renal reserve as a consequence of only having one kidney”. RELEVANT LEGAL FRAMEWORK
CRIMINAL CODE
16. Article 9 of the Criminal Code, Chapter 9 of the Laws of Malta, concerning solitary confinement reads as follows:
“(1) The punishment of solitary confinement is carried into effect by keeping the person sentenced to imprisonment, during one or more terms in the course of any such punishment, continuously shut up in the appointed place within the prison, without permitting any other person, not employed on duty nor specially authorized by the Minister responsible for the prisons, to have access to him. (2) No term of solitary confinement shall exceed ten continuous days. (3) More terms of solitary confinement may only be applied with an interval of two months between one term and another. (4) Nevertheless, solitary confinement may be applied during those intervals in case of any infringement of the prison regulations or for any other offence committed during the said intervals, provided that the terms be of short duration and that they shall not together exceed fifteen days in any one interval. (5) Where the law prescribes the punishment of solitary confinement and does not specify the particular number of terms, it shall not be lawful to inflict more than twelve terms of solitary confinement. (6) The punishment of solitary confinement is applied in the cases prescribed by law. (7) Before awarding the punishment of solitary confinement the court shall satisfy itself, if necessary by medical evidence, which may include a medical examination of the person convicted, that the person convicted is fit to undergo the said punishment. (8) Where, in the course of the execution of the punishment of solitary confinement, the medical officer of the prison certifies in writing that the prisoner is no longer fit to undergo such punishment, the execution of that punishment shall be suspended until such time as the prisoner is again certified to be medically fit to undergo such punishment.”
PRISONS ACT
17. Section 8 of the Prisons Act, Chapter 260 of the Laws of Malta, provides for the establishment of the Board of Visitors of the Prisons, which as of 2015 is called the Corradino Correctional Facility Monitoring Board. In so far as relevant, as amended in 2015, it reads as follows:
“(1) There shall be a Corradino Correctional Facility Monitoring Board, composed of such members as shall be appointed every two years by the President. (2) If any vacancy in the Board occurs on account of death, resignation or for any other cause, the President shall, as soon as practicable, appoint another person to fill the vacancy:
Provided that the Board and the members thereof may act notwithstanding any such vacancy. (3) The members of the Board shall exercise such functions as shall be assigned to them by regulations made under article 6 of this Act. (4) The Minister responsible for the Prisons, the Chief Justice, the judges, the magistrates and the Attorney-General shall be ex officio Special Visitors of the prisons, and as such it shall be lawful for them to have at any time access to the prisons for the purpose of inspecting such prisons and any of the prisoners therein. They shall enter in the official Visitors’ Book any remarks which they may deem proper in regard to the prisons and prisoners, and the book shall be produced to the members of the Corradino Correctional Facility Monitoring Board on their next visit to the prisons. (5) The Director of Prisons shall ensure that all prisoners are made aware of the Corradino Correctional Facility Monitoring Board and its functions thereof and to make available the necessary mechanism in order that the prisoners can make their requests or complaints to the Board.”
PRISONS REGULATIONS
18. In so far as relevant the Prisons Regulations, Subsidiary Legislation 260.03, as amended in 2016 and later, but not including the amendments introduced by means of Legal Notice 475 of 2021, Prisons (Amendment No. 2) Regulations, 2021, published in the Government Gazette on 17 December 2021(*), read as follows:
Regulation 8(1)
“(1) An unconvicted prisoner may keep, if he has them with him on his admission to prison, or have supplied to him at his expense and retain for his own use, books, newspapers, writing materials and other means of occupation, unless this is objectionable to the Director on the grounds that they are not compatible with the interest of the administration of justice or the security or good order of the prison.”
Regulation 17
“(1) Every request by a prisoner to see the Director, the [the Corradino Correctional Facility Monitoring] Board or a member thereof, and any complaint made by a prisoner, shall be recorded by the prison officer to whom it is made and promptly passed on to the Director. (2) The Director shall, without undue delay, see prisoners who have asked to see him and take cognizance of any request or complaint made to him. (3) Where a prisoner has asked to see the Board, or a member thereof, the Director shall ensure that the Secretary of the Board is informed of the request within a reasonable time. (4) Prison officers in direct contact with prisoners, shall, at their request, supply prisoners with an appropriate form approved by the Director for the purpose of making requests, complaints or petitions. Prisoners may, however, submit any request, complaint or petition in any other proper written form and even verbally.”
Regulation 18
“(1) If a prisoner so requests the Director may interview him without any other person being present. (2) If a prisoner requests an interview with the Board, the Secretary and any two other members thereof may interview him without the Director or any other person being present. (3) Every prisoner shall be allowed to make a request or complaint to the Director, to the Board or to the Minister, or to petition the President of Malta, or to an internationally recognized human rights body, under confidential cover. (4) Every request, complaint or petition of a prisoner shall be dealt with and replied to without undue delay.”
Regulation 19
“(1) Where accommodation is shared it shall be occupied by prisoners suitable to associate with each other in those conditions. (2) The accommodation provided for prisoners, and in particular all sleeping accommodation, shall meet the requirements of health and hygiene, due regard being had to climatic conditions and especially the cubic content of air, a reasonable amount of space, lighting and ventilation. Such accommodation shall also allow the prisoner to communicate at any time with a prison officer.”
Regulation 20
“In all places where prisoners are required to live or work –
(a) the windows shall be such as to enable the prisoners to read or work by natural light in normal conditions and shall be so constructed that they can allow the entrance of fresh air, and shall, with due regard to security requirements, present in their size, location and construction as normal an appearance as possible;
(b) artificial light shall satisfy recognised technical standards and, as regards the cells, shall be capable of being dimmed at night in such a way as to permit supervision.”
Regulation 21
“Every prisoner shall be provided with a separate bed and separate bedding appropriate for warmth and health, which shall be kept in good order and changed often enough to ensure its cleanliness in accordance with the orders of the Director.”
Regulation 23
“(1) Prisoners shall be required to keep their persons clean, and to this end they shall be provided with such toilet articles as are needed for health and cleanliness, which articles shall be replaced as necessary.
... (3) Each cell shall be provided with a wash hand basin with running water and with a toilet. If there is no flushing equipment each prisoner shall be allowed to have a sufficient quantity of water for keeping the toilet clean. (4) Proper toilet facilities shall also be provided in other parts of the prison.
...”
Regulation 25
“(1) Prisoners sentenced to imprisonment shall be provided at the normal times with food which is suitably prepared and presented, and satisfies in quality and quantity modern standards of diet and hygiene, and which takes into account the age, sex, and health of the prisoners, the nature of their work and so far as possible, their religious or cultural requirements. (2) The Director shall regularly inspect food provided to the prisoners and shall ensure that no prisoner shall be given food which is less than or different from that which is ordinarily provided, except upon the written recommendation of the Medical Officer. (3) The provisions of this regulation shall also apply to unconvicted prisoners and prisoners sentenced to detention, provided that the Director may establish a system under which such prisoners may be supplied with reasonable amount of food at their own expense or at the expense of their family. In no case can such food be passed to other prisoners without the permission of the Director. (4) No prisoner sentenced to imprisonment shall be allowed, except as authorised by the Director or by the Medical Officer, to have any food other than that ordinarily provided. (5) In this regulation "food" includes drinking water.”
Regulation 28
“(1) Prisoners not engaged in outdoor work shall be given exercise in the open air for not less than a total of one hour, each day, if weather permits: Provided that exercise consisting of physical training maybe given indoors instead of in the open air. (2) The Director may in exceptional circumstances authorize reduction of the period aforesaid. (3) The Medical Officer shall decide on the fitness of every prisoner for exercise and physical training, and may excuse a prisoner from, or modify, any such activity on medical grounds. Special arrangements shall be made for remedial physical education and therapy for those prisoners who need it.”
Regulation 31
“... (7) The Medical Officer shall inform the Director if he suspects any prisoner of having suicidal intentions, and such prisoner shall be placed under special observation.”
Regulation 32
“(1) The Medical Officer shall ensure the care of the physical and mental health of the prisoners and shall also ensure that medical doctors see, under proper conditions and with such frequency as is reasonably required, all sick prisoners, those who report illness or injury, and any prisoner who may require medical attention.
... (3) (a) The Medical Officer shall report to the Director whenever he considers that a prisoner’s physical or mental health has been or will be adversely affected by continued imprisonment or by any condition of imprisonment. (b) If any prisoner is found to have any infectious or contagious disease, a report thereof shall be made forthwith to the Director by the Medical Officer, under whose direction steps shall be taken to treat the condition and to prevent its transmission to others.”
Regulation 33
“ ... (1) (a) Every prisoner shall, as soon as possible after admission, and prior to his release, be separately examined by a medical practitioner of the prison medical services. A record is to be entered of the state of health of the prisoner and other necessary particulars in a register kept for the purpose (...)”
Regulation 34
“(1) The Medical Officer shall regularly advise the Director on:
(a) the quantity, quality, preparation and serving of food and water;
(b) the hygiene and cleanliness of the prison and prisoners;
(c) the sanitation, heating, lighting, and ventilation of the prison; and
(d) the suitability and cleanliness of the prisoners’ clothing and bedding. (2) The Medical Officer shall at least once every six months make a report to the Director on the health of the prisoners and on the general sanitation of the prison.”
Regulation 37
“The medical services of the prison shall seek to detect and shall treat any physical or mental illness or defect or drug-related condition which may affect a prisoner’s well-being in prison or which may impede a prisoner’s re-settlement after release. All necessary medical, surgical and psychiatric services available without charge to the community outside prison shall also be provided to the prisoner.”
Regulation 39
“(1) The Medical Officer shall ensure that the prison medical service keeps proper medical records for each prisoner, and such other records as may be necessary including the times of attendance of medical practitioners, all examinations, inspections and visits carried out, all prescriptions and orders issued, any advice given to the Director relating to any prisoner or prison officer. The stocks of medicines and medical equipment, and generally of all matters relevant to the performance of the duties pertaining to the prison medical service. (2) All records under this regulation shall be kept in the prison and shall be accessible, subject to their confidentiality, to the Minister, the Director, the Board and to any properly authorised person: Provided that as regards the medical records of prisoners the provisions of regulation 7(4)[1]shall, mutatis mutandis, apply. (...) ”
Regulation 47
“An adequately stocked library containing books and periodicals of a suitable instructional and recreational range shall be provided at the prison and, subject to any directions of the Director, every prisoner shall be allowed to have library books and periodicals and to exchange them. The library shall, as far as practicable be organised in co-operation with public and community library services.”
Regulation 51
“(1) Except as provided by these regulations, every letter and communication to or from a prisoner may be read or examined by the Director or a prison officer deputed by him, and the Director may stop any letter or communication if its contents are objectionable or if it is of inordinate length. (2) Every visit to a prisoner shall take place within the sight of a prison officer. (3) Visits to a prisoner may, with the consent of the Director, take place within the hearing of a prison officer. (4) No object may be handed over to a prisoner during any visit without the approval of the Director. (5) The Minister may give directions, generally or in relation to any visit or class of visits, concerning the days, times, duration and any other condition of visits to prisoners.”
Regulation 52
“(1) Subject to the provisions of sub regulation (11), an unconvicted prisoner may send and receive as many letters and may receive as many visits within such limits and subject to such conditions, as the Minister may direct, either generally, or in particular cases.
... (3) The Director may allow a prisoner to send or receive an additional letter or visit where necessary for his welfare or that of his family. (4) The Director may allow a prisoner entitled to a visit to send and receive a letter instead. (5) The Director may defer the right of a prisoner to a visit until the expiration of any period of cellular confinement. (6) A prisoner shall not be entitled under this regulation to receive a visit from any person other than those as are referred to in regulation 50 except with the leave of the Minister. (7) Subject to any direction of the Minister under regulation 51(5), the duration of any visit and the number of visitors in respect of any particular visit shall be established by the Director according to the needs of security, discipline and good order. (8) Visits, other than those referred to in regulations 53 and 54,shall take place in the room or rooms designated for such purpose by the Director who may also permit visits to take place outside such rooms on special grounds and under appropriate supervision. (9) A full record shall be kept in an appropriate register of all visits to prisoners and such record shall include the date and time of the visits and particulars relating to the identity of the visitor.”
Regulation 53
“(1) The legal adviser of a prisoner in any judicial proceedings, civil or criminal, to which the prisoner is a party shall be afforded reasonable facilities for interviewing the said prisoner in connection with those proceedings. (2) With the permission of the Director, the legal adviser of a prisoner may interview him in connection with legal matters other than those referred to in the foregoing sub regulation.
... (4) The interviews referred to in the foregoing sub regulations shall be conducted out of hearing but in the sight of a prison officer. (5) Visits under this regulation shall take place in a room different from the room or rooms where visits referred to in regulation 52 are held, but shall also be recorded in the register of visits under sub regulation (9) of that regulation.”
Regulation 54(1)
“A prisoner who is a party to any legal or judicial proceedings may correspond with his legal adviser in connection with those proceedings and, unless the Director has reason to suspect that any such correspondence contains matter not relating to the proceedings, the said correspondence shall not be read or stopped under regulation 51(1).”
Regulation 59(1)
“Telephone calls by prisoners shall be subject to the needs of security, discipline and good order of the prison and shall be considered as a privilege in terms of regulation 13. All telephones within the Prisons shall be equipped for monitoring and recording of conversations, and the Director may authorise the intentional hearing of such conversations to safeguard members of the public or the security or safety within the prison, or to prevent the furtherance of any illegal activity.”
Regulation 67
“(1) Where it appears desirable, in the interests of security or for the maintenance of good order or discipline or in his own interest, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the Director may arrange for the prisoner’s removal from association accordingly. During such periods the Director may also order the cancellation of visits, other than those referred to in regulations 53, 54 and 55. (2) A prisoner shall not be removed from association under the foregoing sub regulation for a period of more than forty-eight hours without the authority of the Minister. An authority given under this sub regulation shall be for a period not exceeding fifteen days, but may be renewed for similar periods. Such an authority shall be immediately notified to the Chairman of the Board. (3) The Director may, in his discretion, direct that the prisoner resume association with other prisoners, and shall so direct if the Medical Officer advises accordingly on medical grounds:
Provided, that when such removal had been effected under the Minister’s authority in terms of the preceding sub regulation, the Minister and the Chairman of the Board shall be notified immediately of such direction.”
Regulation 73
“Particulars of every case dealt with under regulations 67,68, 69 and 71 shall be forthwith recorded by the Director in a register kept for the purpose.”
Regulation 78
“(1) If the Director finds a prisoner guilty of an offence against discipline he may impose one or more of the following punishments: ... (f) cellular confinement not exceeding thirty days; ...”
Regulation 82
“(1) Cellular confinement in respect of offences against discipline shall be undergone in a cell which meets the standards of these regulations. (2) The Medical Officer shall monitor the condition of prisoners undergoing cellular confinement and shall advise the Director if the termination or alteration of the relative punishment is considered necessary on grounds of physical or mental health. If the Director, acting on such advice, terminates or alters the punishment of cellular confinement, he shall substitute for it an alternative punishment specified in regulation 78. (3) It shall also be the duty of the Medical Officer to monitor the condition of any prisoner sentenced to solitary confinement by any court.”
Regulation 90
“... (3) Saving his powers to give orders, whether verbally or in writing, as he may deem fit for the proper running of the daily administration of the prison, the Director may also make orders in writing relating to any aspect of the administration of the prison and the maintenance of discipline, security and good order therein, as well as to any other matter forming part of his duties as set out in these regulations: Provided that nothing in such orders shall be contrary to the provisions of the Act or of these regulations. (4) The Director shall take strict care to ensure that these regulations and any direction or order given thereunder, as well as any order relating to the prison, are complied with and enforced. (...)”
Regulation 107*
“It shall also be the duty of the Board to hear and decide upon, as soon as practicable, any request or complaint made to it by a prisoner including on matters relating to the conditions of their detention directly to the Secretary or to any of its members during the course of a visit or inspection.”
Regulation 108*
“(1) The decisions of the Board shall be taken by a majority of the members present and voting. In the case of an equality of votes the Chairperson shall have a casting vote in addition to his original vote. (2) The decisions of the Board shall not be binding upon the Director but it shall be the duty of the Director to take serious cognizance of the recommendations of the Board following a decision taken as provided in sub regulation (1) and to enter into a dialogue with the Board on possible implementation measures. Subject to the provisions of sub regulation (3), where the Director, or any other prison officer acting on his behalf, is of the opinion that the recommendations of the Board cannot be implemented for reasons which are in the best interests of the prison administration, an explanation in writing of these reasons shall, within one month of the date of receipt of the Board’s recommendations, be forwarded to the Chairperson of the Board and copied to the Minister, or to a person delegated by him. The Minister, or the person delegated by him, may confirm or vary the decision of the Director. (3) Where the recommendation of the Board entails, in the opinion of the Director, a security issue requiring strict confidentiality the Director, within the period of one month mentioned in sub regulation (2), shall make a statement to this effect to the Chairperson of the Board and shall concurrently submit a personal report directly to the Minister, or to the person delegated by him, giving his own comments on the recommendation, together with his opinion as to whether or not such recommendation should be accepted. The Minister’s decision, or that of the person delegated by him, shall be final and conclusive. (4) It shall also be lawful for the Board to decide on complaints and requests made by the prisoners relating to the conditions of their detention within a period of two months of the date of receipt of the request or complaint and after consulting the Director in relation to the said requests and complaints.”
Regulation 114
“The Board shall inquire into any report made to it, or any information otherwise coming to its knowledge, that a prisoner’s health, mental or physical, has been or is likely to be injuriously affected by any conditions of his imprisonment.”
RELEVANT INTERNATIONAL MATERIALS[2]
COVID-19
19. The Council of Europe issued a number of statements in connection with the Covid-19 pandemic and prisons, as follows:
20. The Council of Europe Secretary General’s Toolkit for member States “Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis” (Doc. SG/Inf(2020)11 of 7 April 2020) -
https://rm.coe.int/sg-inf-2020-11-respecting-democracy-rule-of-law-and-human-rights-in-th/16809e1f40
21. The Statement of the Council of Europe Commissioner for Human Rights made on 6 April 2020: “COVID-19 pandemic: urgent steps are needed to protect the rights of prisoners in Europe” -
https://www.coe.int/en/web/commissioner/-/covid-19-pandemic-urgent-steps-are-needed-to-protect-the-rights-of-prisoners-in-europe
22. Statement of principles relating to the treatment of persons deprived of their liberty in the context of the coronavirus disease (COVID-19) pandemic issued on 20 March 2020 - European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) Council of Europe -
https://rm.coe.int/16809cfa4b
and its follow up of July 2020 https://rm.coe.int/16809ef566
23. Covid-19 Related statement by the members of the Council for penological co-operation working group (PC-CP WG) CPT/Inf(2020)13 - https://rm.coe.int/pc-cp-wg-covid-19-statement-17-04-2020/16809e2e55
and its follow up of October 2020 https://rm.coe.int/pc-cp-2020-10-e-rev-follow-up-to-pc-cp-wg-statement-covid-19/16809ff484
24. On 15 March 2020 the World Health Organisation (‘WHO’) issued interim guidance concerning the Pandemic entitled “Preparedness, prevention and control of COVID-19 in prisons and other places of detention” -
https://apps.who.int/iris/bitstream/handle/10665/336525/WHO-EURO-2020-1405-41155-55954-eng.pdf?sequence=1&isAllowed=y
GENERAL PRISON STANDARDS
25. The United Nations Standard Minimum Rules for the Treatment of Prisoners -
https://www.unodc.org/documents/justice-and-prison-reform/Nelson_Mandela_Rules-E-ebook.pdf
26. Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules - Adopted by the Committee of Ministers on 11 January 2006, at the 952nd meeting of the Ministers’ Deputies and revised and amended by the Committee of Ministers on 1 July 2020 at the 1380th meeting of the Ministers’ Deputies -
https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805d8d25
27. Combatting ill-treatment in prison, Council of Europe handbook -
https://rm.coe.int/combating-ill-treatment-in-prison-2-web-en/16806ab9a7
28. Good governance for prison health in the 21st century. A policy brief on the organization of prison health (2013), compiled by the United Nations Office for Drugs and Crime and the WHO, regional office for Europe -
https://www.euro.who.int/__data/assets/pdf_file/0017/231506/Good-governance-for-prison-health-in-the-21st-century.pdf
29. Office of the High Commissioner for Human Rights, Human rights in the administration of justice, A/HRC/42/20, 30 July 2019 -
https://www.ohchr.org/Documents/Issues/RuleOfLaw/Violence/A_HRC_42_20_AUV_EN.pdf
OTHER MATTERSSolitary confinement

30. Recommendation Rec(2006)2-rev of the Committee of Ministers to member States on the European Prison Rules, adopted by the Committee of Ministers on 11 January 2006, at the 952nd meeting of the Ministers’ Deputies and revised and amended by the Committee of Ministers on 1 July 2020 at the 1380th meeting of the Ministers’ Deputies (link at paragraph 26 above), in so far as relevant at the time of the present case, reads as follows:
“53.1 Special high security or safety measures shall only be applied in exceptional circumstances.
53.2 There shall be clear procedures to be followed when such measures are to be applied to any prisoner.
53.3 The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law.
53.4 The application of the measures in each case shall be approved by the competent authority for a specified period of time.
53.5 Any decision to extend the approved period of time shall be subject to a new approval by the competent authority.
53.6 Such measures shall be applied to individuals and not to groups of prisoners.
53.7 Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule 70.
...
60.6.a   Solitary confinement, that is the confinement of a prisoner for more than 22 hours a day without meaningful human contact, shall never be imposed on children, pregnant women, breastfeeding mothers or parents with infants in prison.
60.6.b   The decision on solitary confinement shall take into account the current state of health of the prisoner concerned. Solitary confinement shall not be imposed on prisoners with mental or physical disabilities when their condition would be exacerbated by it. Where solitary confinement has been imposed, its execution shall be terminated or suspended if the prisoner’s mental or physical condition has deteriorated.
60.6.c   Solitary confinement shall not be imposed as a disciplinary punishment, other than in exceptional cases and then for a specified period, which shall be as short as possible and shall never amount to torture or inhuman or degrading treatment or punishment.
60.6.d   The maximum period for which solitary confinement may be imposed shall be set in national law.
60.6.e   Where a punishment of solitary confinement is imposed for a new disciplinary offence on a prisoner who has already spent the maximum period in solitary confinement, such a punishment shall not be implemented without first allowing the prisoner to recover from the adverse effects of the previous period of solitary confinement.
60.6.f    Prisoners who are in solitary confinement shall be visited daily, including by the director of the prison or by a member of staff acting on behalf of the director of the prison.”
31. In so far as relevant, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 21st General Report on the CPT’s activities, 2011, deals with solitary confinement at pages 39-50, and can be accessed -
https://rm.coe.int/1680696a88
32. See below the findings of the CPT in relation to solitary confinement in Malta, at point 90 of the report. CPT report Malta (2016)
33. The Report to the Maltese Government on the visit to Malta carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 25 October 2016, in so far as relied on by the applicant, reads as follows:
“56. The delegation noted that some renovations had been undertaken in CCF (for example, of Divisions IV and VII). Further, two of the previously most problematic divisions (Divisions VI and XV) had been closed down. Nevertheless, the remaining divisions provided generally poor living conditions for the inmates, and this was particularly the case in Divisions II, III and XIII. While most cells were sufficient for single occupancy (measuring some 9m²), the dormitory rooms at CCF (for example in Division XIII) were cramped, with nine inmates held in approximately 30m² (i.e. significantly less than the minimum standard of 4m² of living space per prisoner in a multiple-occupancy cell recommended by the CPT).19 Many of the cells were excessively hot (over 30 degrees Celsius at the time of the visit) with poorly functioning ventilation. Further, some of the cells were in a bad state of repair, with mould or ingrained dirt evident on the walls and around the windows. Many of the washrooms were dirty, some showers lacked shower-heads and there were problems with drainage, which reportedly caused water to leak into the nearby cells (especially on the ground floor of Division XIII). The in-cell toilets were unscreened, had mal-functioning flushes, and the water was cut off intermittently. This was particularly problematic given an outbreak of diarrhoea among the prisoners during the delegation’s visit (see paragraph 76). Prisoners did not believe that in-cell water from the sinks was safe to drink and the staff concurred with them. Many prisoners, especially those inmates who only lived off the basic €27 monthly allowance, complained to the delegation about the lack of ready access to safe drinking water and the need to buy bottled water. The divisions had individual or shared exercise yards, which consisted merely of a stretch of bare tarmac. They were not equipped with any means of rest (let alone any sports or recreational equipment) or any shelter to protect prisoners from sun or rain. The yards were extremely hot, and at the time of the visit, the delegation noted that not a single prisoner made use of them during the day.
... 76. In the course of the delegation’s visit to CCF, there was an outbreak of diarrhoea. On 4 September 2015, 15 prisoners complained of diarrhoea at CCF, followed by another 20 inmates the following day. Various stool samples from inmates were also sent by CCF to the hospital laboratory on the evening of 4 September. Health Inspectors attended the prison on the morning of 5 September and took samples of water and food from the kitchen. Initially, prison management stated that all inmates affected had been in single cell accommodation and remained there; however, the delegation found nine of the affected prisoners were sharing cells with at least one other person and one inmate was in a large dormitory. The prison management explained that this was their first experience of a new phenomenon and the delegation observed that they were unsure how to contain and deal with the outbreak. On 9 September, some five days after the outbreak had commenced, it was confirmed that the cause of the outbreak was salmonella, which was presumed to have come from tuna in the kitchen. In total, 41 prisoners had been affected by this outbreak.
... 77. The CPT knows that the risk of disease transmission is enhanced in a closed institution (such as a prison), in particular when general hygiene and environmental conditions are poor. Consequently, prison health-care services should adopt a proactive approach, with a view to minimising the risk of the spread of certain infections. The CPT recommends that the Maltese authorities put in place robust policies to deal immediately with health (and other) crises that may take place within the prison, including adopting a proactive approach, with a view to minimising the risk of the spread of certain infections and ensure the speedier analysis of test results. To this end, regular health checks of the food quality, storage procedures and hygiene standards and procedures in the CCF kitchen should be undertaken.
... 90. As regards solitary and cellular confinement for discipline purposes, section 68 of the Prison Regulations stipulates that ‘the Director may order a violent prisoner to be confined temporarily in an appropriate cell [and] if the Director keeps such order in force for more than forty-eight hours he shall consult the Medical Officer and shall inform the Chairman of the Board’. In CCF, solitary confinement on account of violence was resorted to in one of three adjoining cells, built in 2000 and designated as single rooms used for medical and disciplinary isolation purposes, situated next to the Infirmary. Each of the three cells had a bed plinth with a mattress and a toilet annexe. The cells had access to natural light and adequate ventilation and each had a call-bell. From examination of the relevant registers and interviews with prisoners and staff, it was clear that these cells were only occasionally used. Of the nine placements from January 2015 until the date of the CPT delegation’s visit, seven had been for medical observation reasons and two for disciplinary purposes. The disciplinary cases had both involved the same person and each had lasted less than 48 hours. The seven medical cases had lasted seven, four, seven, five, two, one and three days respectively. As regards the sanction of cellular confinement for up to a period of 30 days, the CPT understands that this measure means that the inmate is kept in his or her cell. Therefore, in most cases in CCF (given that most of the prisoners have single-cell accommodation) this measure means being placed in effective solitary confinement for 30 days. The CPT recalls that solitary confinement as a disciplinary sanction should not last for a period of more than 14 days consecutively. Thus, it recommends that the Prison Regulations be amended to reflect this.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
34. The applicant complained about his conditions of detention which he considered were in breach of Article 3 of the Convention, which reads as follows. “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
AdmissibilityNon-exhaustion of domestic remedies

(a)   The parties’ submissions
(i)      The Government
35. The Government submitted that the applicant had failed to exhaust domestic remedies as he had failed to raise these complaints before the constitutional jurisdictions. While the Court had previously found that such proceedings were too lengthy for the purposes of complaints under Article 3 of the Convention, in relation to conditions of detention, those considerations were no longer valid. This was shown by the speed within which the applicant’s complaints under Articles 5 and 6 of the Convention had been determined, namely less than seven months over two levels of jurisdiction, during a pandemic. It followed that the domestic courts adequately responded to cases requiring expeditious and urgent conclusions. The Government further relied on the cases of Alfred Degiorgio v. the Attorney General (no. 29/2019), instituted on 26 February 2019, decided at first instance on 28 February 2019 and, on appeal, by the Constitutional Court on 12 July 2019; Victor Buttigieg (Joseph Victor) v. the Attorney General (no. 97/2018) instituted on 28 September 2018, and decided at first instance on 11 March 2019 and, on appeal, by the Constitutional Court on 12 July 2019; Onor. Simon Busuttil v. the Attorney General (no. 86/2017) instituted on 19 October 2017, decided at first instance on 12 July 2018 and, on appeal, by the Constitutional Court on 29 October 2019, which concerned other Convention complaints. The Government explained that cases concerning ongoing ill‑treatment, in detention, were extremely rare and it was therefore difficult to provide examples of cases under Article 3, with similar circumstances as those in the instant case, to show the speed with which they were decided. Moreover, they noted that this avenue of redress was still open to the applicant. 36. They further noted that raising such complaints in the context of his bail applications had not been an appropriate course of action as such courts were not intended to determine the Convention compatibility of the applicant’s conditions of detention, but rather whether he qualified for bail. 37. The Government further submitted (in the context of the merits of the complaint) that, despite his allegations (see paragraph 40 below), the applicant had not filed complaints with the Corradino Correctional Facility Monitoring Board which was specifically tasked to hear complaints concerning detention conditions. Furthermore, the Government questioned whether the matters raised by the applicant in respect of his confidential communication with lawyers could be relevant for a claim under Article 3 since such issues were normally raised in a complaint under Article 6 or Article 8, or exceptionally Article 34. They highlighted in particular that according to the Court’s case-law, national courts should initially have the opportunity to determine questions of the compatibility of domestic law with the Convention and that, if an application is nonetheless subsequently brought to Strasbourg, the European Court should have the benefit of the views of the national courts, as being in direct and continuous contact with the forces of their countries. (ii)    The applicant
38. The applicant submitted that he had not lodged constitutional proceedings in respect of these complaints, because unlike the ones under Article 5 which in his view would be dealt with more swiftly (as was in fact the case), he considered that they would take too long, as shown by other domestic examples. Notably, a constitutional application filed by an activist in September 2020, challenging the CCF authorities’ prohibition of his access to the prison premises (for the purpose of assessing the veracity of claims of egregious prison conditions by prison inmates), was still being heard by the Constitutional Court on 25 June 2021, i.e. nine months later. 39. He further noted that in his applications before the Criminal Court of 1 April 2020 and 16 April 2020 (see Fenech (dec.), cited above, §§ 15‑16 and 29), which were dismissed, he had explicitly raised the issues of the risk to his life and health in detention due to Covid-19, and the alleged violation of Article 3 of the ECHR owing to the prison conditions, respectively. After that, following a further request concerning access to his lawyer, by a decree of 24 November 2020 (not submitted to the Court) (see paragraph 9 above), the Court of Magistrates declined to intervene, claiming that it had no jurisdiction on issues concerning the management of the prison or the implementation of the relevant legal provisions regulating the prison facility. In consequence the applicant had no effective judicial remedy to pursue. 40. According to the applicant, during his solitary confinement from 30 November 2019 till 3 January 2020, he complained to the prison authorities every day, requesting them to remove him from such isolation, but his complaints were always rejected. The applicant further submitted that he had approached the prison director for the rectification of his poor prison conditions several times – approximately fifteen times during informal meetings, as well as three formal requests – and had been reassured each time that his conditions would change. However, his conditions never materially changed. Thus, the prison’s internal complaints mechanism did not exist in practice. Lastly, the applicant had also complained, to no avail, about the lack of confidentiality in communication with his lawyers, both with the detention authorities and the Court of Magistrates (see paragraph 9 above). (b)   The Court’s assessment
41. The Court refers to the general principles stemming from its case‑law and the assessment of the constitutional redress proceedings it made in Story and Others v. Malta (nos. 56854/13, 57005/13 and 57043/13, §§ 72-76 and 82-86, 29 October 2015) and reiterated in, for example, Yanez Pinon and Others v. Malta (nos. 71645/13 and 2 others, § 76, 19 December 2017) and Abdilla v. Malta (no. 36199/15, § 24, 17 July 2018), finding that detainees in situations similar to that of the applicant in the present case were not required to have recourse to constitutional redress proceedings, and in the latter case a consequent violation of Article 13 taken in conjunction with Article 3 (§ 72). The Court further refers to its more recent findings confirming those considerations in Feilazoo v. Malta (no. 6865/19, § 59, 11 March 2021). 42. The Court notes that the cases relied on by the Government, including that of the applicant, were decided by the constitutional jurisdictions in periods ranging between four and a half months to two years. Such periods cannot be considered to conform to a timely determination of complaints of inhuman conditions of detention and to put an end to the treatment complained of rapidly (compare Torreggiani and Others v. Italy, nos. 43517/09 and 6 others, § 97, 8 January 2013, and contrast, Domján v. Hungary (dec.), no. 5433/17, § 21, 14 November 2017, and Antanasov and Apostolov v. Bulgaria (dec.), nos. 65540/16 and 22368/17, § 52, 27 June 2017, concerning periods of between fourteen and seventeen days). The Court thus finds no reason to alter the conclusions already reached in the above‑cited cases against Malta. Thus, while the Court cannot rule out the possibility that constitutional redress proceedings dealt with speedily may in a future case be considered an effective remedy for the purposes of complaints of ongoing conditions of detention under Article 3, current domestic case-law does not allow the Court to find that the applicant was required to have recourse to such a remedy concerning the crux of his complaints (see paragraph 45 below). 43. In so far as the parties referred to the Corradino Correctional Facility Monitoring Board (also known as the Board of Visitors), the Court notes that the Government have not raised this in their exhaustion objection, nor – at any stage of their submissions – have they claimed that this was a remedy which the applicant should have exhausted before bringing proceedings before the Court. In fact, the Court has already had the opportunity to examine this procedure and found that it fell short of Article 13 requirements (see Story and Others, cited above, § 78). Nothing has been brought to the Court’s attention to dispel the Court’s concerns set out at the time, which prima facie were still relevant in 2020 when the applicant raised his complaints before the Court, despite slight changes to the law in 2016. The Court further observes that while the regulations and procedure pertaining to the Board were again recently amended, via Legal Notice 475 of 2021 – Prisons (Amendment No. 2) Regulations, 2021, Government Gazette of Malta No. 20,752 – 17.12.2021, the parties have not brought this to the Court’s attention, and thus they fall outside of the scope of the Court’s examination. 44. Indeed the Court notes that in Story and Others, cited above, the Court had solicited the Government to introduce a proper administrative or judicial remedy capable of ensuring the timely determination of such complaints, and where necessary, to prevent the continuation of the situation (ibid., § 85). More than six years later the situation remained unchanged (see also Abdilla, cited above, § 71). It follows that the Government’s objection of non‑exhaustion of domestic remedies must be dismissed in relation to the main complaint under Article 3. 45. However, other considerations apply as regards the applicant’s complaints, which he raised under Article 3, concerning the use of surveillance cameras in his cell or during visits with his legal counsel and the interception of telephone calls or documents brought to the prison by his legal counsel, as expounded in his observations. 46. The Court observes that it has held that placing a person under permanent video surveillance whilst in detention – which already entails a considerable limitation on a person’s privacy – has to be regarded as a serious interference with the individual’s right to respect for his or her privacy, as an element of the notion of “private life”, and thus brings Article 8 of the Convention into play (see Van der Graaf v. the Netherlands (dec.), no. 8704/03, 1 June 2004, and Vasilică Mocanu v. Romania, no. 43545/13, § 36, 6 December 2016). Similarly, the Court has held that, while the surveillance of communication in the visitation area in prison may legitimately be done for security reasons, a systemic surveillance and recording of communication for other reasons represents an interference with the right to respect for private life and correspondence under Article 8 of the Convention. In this context, Court has placed particular emphasis on the requirement of lawfulness, including clarity and foreseeability of the relevant law (see Wisse v. France, no. 71611/01, §§ 29‑34, 20 December 2005, and Doerga v. the Netherlands, no. 50210/99, §§ 44-54, 27 April 2004, concerning the tapping, recording and retention of telephone conversations). Such measures require an adequate framework regulating their use and guaranteeing safeguards against abuse by the State (see, for example, Gorlov and Others v. Russia, nos. 27057/06 and 2 others, §§ 97-100, 2 July 2019). 47. In this connection the Court notes that the applicant’s complaints in this respect, as elaborated in his observations, constitute autonomous complaints under Article 8 of the Convention, and thus should have been raised before the constitutional jurisdictions which are effective remedies for the purposes of that provision (see, for example, Story and Others, cited above, § 132, and Knoess v. Malta, (Committee dec.), no. 69720/11, §§ 75‑76, 9 December 2014). Thus, the Court considers that in the absence of any issues arising under Article 34 (see, a contrario, Peňaranda Soto v. Malta, no. 16680/14, §§ 99-102, 19 December 2017, and Feilazoo, cited above, § 124), in the circumstances of the present case, it would be contrary to the principle of subsidiarity to assess the case under Article 3, as stands before it, that is, including the above-mentioned issues falling more appropriately, if not exclusively, under Article 8. 48. Without prejudice to the applicant’s possibility of bringing the latter complaints again before the Court at a later stage – after having exhausted domestic remedies in that respect (see, for example, Roche v. Malta (Committee dec.), nos. 42825/17 and 66857/17, § 102, 12 June 2018, and, in practice, Cutajar v. Malta (Committee dec.), no. 55775/13, 23 June 2015) –the Court considers that at this point in time this part of the complaint under Article 3 must be declared inadmissible, in accordance with Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies, and thus cannot form part of the scope of the applicant’s complaint under Article 3. Conclusion
49. The Court notes that the complaint under Article 3, within the scope delimited above, is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe period from 30 November 2019 to 3 January 2020

(a)  The parties’ submissions
(i)      The applicant
50. The applicant’s submissions at the time when he lodged his application are set out in paragraph 12 above. In his later observations he admitted that the cell had a window but explained that only one small part of the three-part window could be opened, which did not allow adequate ventilation, and the cell lacked temperature control. The clothes provided did not protect from the cold and the harsh artificial lighting switched on all through the night was oppressive and prevented any semblance of peace or relaxation. Challenging the Government’s submissions and the affidavit by the prison director, the applicant reiterated that he had never been allowed to go outside for sunlight or fresh air. During his one-hour break, he was taken to a room adjacent to the solitary confinement chamber, and was expected to bathe, clean the cell, exercise, and call his family. Moreover, the cell did not have any running water or toilet paper, and the applicant had no access to any basic necessities (water, food, cigarettes) between the hours of 10 p.m.- 6 a.m. and he had been forced to tolerate the foul smell and lack of hygiene as a result of the non-flush toilet. Admitting that this could be flushed from the outside, he claimed that such service was not available during nighttime. Thus, if he used the toilet during these hours, he had no means to flush but had to endure these conditions until 6 am. To add to the humiliation, a CCTV camera pointed directly on the toilet with no shielding or screening to protect the applicant’s privacy or dignity. The applicant insisted that he had not been allowed to speak to his wife or family at all for the first fourteen days, and while he did visit the Chaplain once every week, this had not constituted sufficient human or personal contact. 51. The applicant relied on the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (21st General Report on the CPT’s activities, 2011), the United Nations General Assembly (United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), A/RES/70/175, Rule 45) and the Council of Europe’s European Prison Rules (See Relevant International Materials above), as well as the Court’s case-law, all setting out standards relating to solitary confinement. 52. He noted that although in Malta, solitary confinement could be imposed pursuant to a criminal conviction under Article 9 of the Criminal Code (see paragraph 16 above) or else as a disciplinary sanction under Prison Regulation (hereinafter ‘Regulation’) 82 (see paragraph 18 above) (both of which didn’t apply in his case), there was no law regulating the solitary confinement applied to him as a purportedly protective measure. Moreover, whilst according to the Criminal Code solitary confinement “shall not together exceed fifteen days in any one interval”, the Prisons Regulations contradictorily allowed solitary confinement on disciplinary grounds for a period of thirty days. Despite recommendations by the CPT that the Prisons Regulations be amended such that the maximum period of solitary confinement would be fourteen days (see paragraph 33 in fine above), no such changes ensued. 53. The applicant considered that the prison authorities had unfettered and unregulated “discretion” and the manner in which it had been exercised in his case had been retributive, abusive, and dangerous. He believed he was being punished due to the nature of the charges against him, or for having tested positive for cocaine. Moreover, the decision on his solitary confinement had been taken by the prison director without, at the time, providing any written reasoning or justification for this extreme course of action. The applicant had merely orally and briefly been informed of this, without being provided with detailed reasons, any adequate support, or any avenue for complaint or appeal. 54. The Government’s attempts to substantiate their claim (that it had been a protective measure), were based on ‘a single entry by a medical officer in the bottom corner of a report dated 30 November 2019’, which in the applicant’s view appeared to have been appended to the medical report at a later date, to provide retroactive justification for the abusive treatment. The report, inter alia, had noted the good health and calm nature of the applicant, marked ‘NIL’ against the question of ‘Withdrawal Symptoms’, and had not noted any other danger to his health or psychiatric issues, nor found any requirement for Methadone or any detox, and the applicant’s last cocaine use had been a full (sic.) week before the medical assessment. Then, inexplicably, the report had concluded that the applicant was showing an “idea of self‑harm” and “suicidal intention” and needed to be placed in a single room. Strikingly, the medical officer did not check the boxes for ‘Psychiatrist’ and ‘Psychological’ review as being necessary on the very same page. Indeed, the applicant had only been checked by a psychologist once at the beginning of his detention, and he had not been placed on regular supervision by a medical officer at any point during the thirty-five days, nor had he been offered any rehabilitation programme. Further, the medical report did not detail what the risks had been, why the prison authorities concluded that solitary confinement, without proper clothing or proper bedding, would have provided any required support or reduced the danger and the applicant had never been notified of his purported medical risk. Equally, the prison director’s decision to move the applicant from solitary confinement to a mixed dormitory had not been based on medical evaluation or risk – as none had been carried out. Nor had any written decision been communicated to the applicant or his lawyers regarding his change in detention conditions. 55. The applicant submitted that the Government’s claim that the applicant had also been kept in isolation to reduce the risk of hindering the investigation had to be dismissed as untruthful. Indeed, no such risk assessment had been undertaken neither at the time of incarceration nor at the time of his move into a mixed dormitory. Instead, the applicant’s treatment had been consistent with the CCF’s brutal policy of dealing with those who may have drug addiction problems. Relying on various press articles, the applicant submitted that – at date of submissions, July 2021 – twelve prisoners had died whilst serving prison sentences over the last three years, with four of them being supposed suicide cases, while six were of cases where the detainees had been found “unconscious” or died under mysterious circumstances in their cell. One example, which fuelled questions about the system used by the prison in dealing with drug addicts and with people contemplating suicide was that of a young woman who died following a suicide attempt after having been denied a drug rehabilitation programme. The applicant referred to the self-proclaimed attitude of the prison director – a former army officer known for his military-style leadership – whose methods had been questioned and several had asked for his resignation. In January 2021, it was revealed in public that a notice hung on the walls of the prison, signed by the prison director which read: “The inmate does not fear the police, the judge or the jury. Therefore, it is our job to teach fear. Welcome to prison!”. The notice had since been taken down, however, the prison authorities’ continuous attempt to conceal the real circumstances of the prison conditions had also been noted by members of the press. (ii)    The Government
56. The Government submitted that while it was true that during these thirty-four days the applicant was kept separately in a single room, his detention did not amount to solitary confinement as defined in the European Prison Rules of 2020 (see paragraph 30 above), or the Maltese Criminal Code. During such time, the applicant had had regular (unlimited) meetings and calls with his legal counsel for long stretches of time as well as regular contact with the prison authorities, including the Chaplain, and contact with his family. Furthermore, the prison division in which the single rooms had been situated was designed in such a way that the inmates were able to speak with one another, albeit from behind their cell door. The Government noted that the Court had previously held that the separation of an inmate from the rest of the prison population ‘for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment.’ In this case, the applicant had not been subject to complete sensory deprivation nor total isolation. 57. The applicant had been placed in a single room, upon the decision of the prison director, upon medical advice, for security and protective reasons, as, following his medical examinations on entry, it transpired that he was positive for cocaine and that he had a history of drug abuse (heroin and marijuana). The Government noted that that his initial drug result, together with the fact that he had been accustomed to a lavish lifestyle, made him a risk profile. In his affidavit the prison director noted that CCF was ‘Drug Free’ and explained that it was the facility’s policy for everyone testing positive for drug use not to be allowed to mix with other inmates until they tested negative; He explained that this was the applicant’s case, where he had remained in the cell at issue until 3 January 2020, date when the medical staff declared that, according to regular testing, the applicant was no longer positive for cocaine; Having determined that he was mentally stable, arrangements were put in place for his transfer to another division. 58. According to a report of 30 November 2019, submitted to the Court, the medical doctor had suggested that the applicant be kept under constant watch and that he be given “non-tearable clothing” and a “Luna blanket”. In so far as the applicant shed doubt on the authenticity of those findings, the Government noted that the notes had been clearly written by the same person with the same handwriting and the same pen on the same day, thus the applicant’s allegations in this respect were false and unsubstantiated. The Government explained that the single room was designed to reduce the risk of self-harm and that the applicant had been subject to continuous watch, via CCTV, for the same purpose – contrary to his allegation that he had not been monitored. It was for the same reasons that the applicant had been provided only with shorts and a T-shirt at the time, and that the single room had not contained a proper bed frame. He had, however, been provided with two blankets and could have requested more. 59. The Government also considered that placement in a single room limited the risk of someone communicating with the applicant and attempting to hinder the important investigations being carried out at the time into the assassination. According to the Government all decisions concerning placements of inmates were taken following a thorough risk assessment to ensure that the prison remained as calm and as safe an environment as possible and that any tensions between inmates were avoided. 60. The Government explained that the room had been equipped with a Turkish-style squat toilet and while no flushing had been available (to avoid ligature points and prevent from self-harm), the applicant could, at any time during the night or day (contrary to that alleged by the applicant), ask the prison guards to flush the toilet from outside the cell. It had also had a large window which could be freely opened by the applicant for fresh air and ventilation. As regards the continuous lighting complained of by the applicant, while it was true that there was no such control from inside the cell, again the guards could see to this. The reason for this design was, once again, to avoid ligature points to the greatest extent possible. The applicant had had sixty minutes of out-of-cell activity during which he had been expected to clean his cell, take a shower and make a phone call (other than to his legal counsel – to whom phone access was unlimited) but he had not been required to eat within that same hour. While cigarettes had not been allowed during the night, a cigarette could be given to the applicant every hour throughout the rest of the day. 61. Overall, the Government submitted that the applicant’s submissions had been littered with inaccuracies, contradictions, and outright fabrications. On occasions he had changed his submissions only once the Government had provided proof of his false allegations, as for example, in relation to the claim that the cell had only artificial lighting, which then had been turned around to say that the window did not provide adequate ventilation. (b)   The Court’s assessment
(i)      General principles
62. 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, 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.

Outcome for Article 3: no_violation