HFHR intervenes in case of pre-trial detention of elderly persons

The Helsinki Foundation has been notified of the pre-trial detention of A.D. and W.R., a married couple. Despite their advanced age and bad health, they have been detained for nearly 9 months pending a criminal investigation instituted against them.

The case of A.D. and W.R.

A. and W. are a couple of, now retired, lawyers. They are both 78. In the beginning of 2017, a court put them in pre-trial detention for a period of three months. A court of appeal has twice denied complaints against the extensions of this preventive measure submitted by the couple’s lawyers. In effect, the period of their detention is now nearing 9 months.

Apart from their old age, the spouses suffer from a number of chronic medical conditions, such as major orthopaedic, cardiology and neurological conditions as well as post-cancer complications. Furthermore, the conditions at the detention centre do not adhere to the special needs of elderly and ill persons: beds and sitting surfaces are not adjusted to their motor abilities, artificial light negatively affects their sight; they are also exposed to renovation-induced noise and dustiness.

HFHR’s intervention

On 23 October 2017, the HFHR submitted a legal opinion to the court that was to decide on the extension of pre-trial detention. The opinion described standards concerning the obligation to provide appropriate medical care for detained persons, which must be done in consideration of their health and age. The Foundation referred in particular to Article 3 of the ECHR, which prohibits torture and other forms of maltreatment.

“If authorities decide to detain a person suffering from a medical condition, they must perform the obligation to provide this person with a sufficient level of treatment. If this is impossible, and conditions in a detention facility are not adjusted to a detainee’s health, the state is obliged to release the detainee”, HFHR lawyer Maciej Kalisz explains.

The HFHR’s opinion includes similar arguments regarding the advanced age of the detained spouses, which usually implies poor health. The opinion shows that a long-term detention of an elderly person may also pose the risk of a violation of Article 3 ECHR, in particular where the conditions of detention are not adjusted to the special needs of an elderly detainee. Such conditions must not cause further deterioration of the detainee’s health. They specifically should enable the detainee to move freely at the facility, and ensure access to a bed and toilet.

ECtHR: when detention of elderly person is inadmissible?

The Strasbourg Court has so far issued two judgments in which it found violations of Article 3 ECHR in connection with the detention of an elderly person.

“According to the reasoning presented by the ECtHR, an illness or age does not give immunity from pre-trial detention”, says Piotr Kubaszewski, HFHR’s lawyer. “However, if authorities, after all, decide to proceed with detention, they must perform the obligation to ensure a sufficient level of treatment and appropriate conditions in a detention facility. In extreme cases, a detained person may even be eligible for release”, Mr Kubaszewski adds.