The Law on Arrest on Remand provided that the toilet in the detention cells must be separated from the rest of the cell with wall which is not higher than 1,2 metres.
The Ombudsman complained that the height of the wall was insufficient to ensure privacy therefore it violated the prohibition of degrading treatment.
The Court noted that no derogations are permitted from the prohibition of inhuman and degrading treatment. Therefore the detainees have the right to be treated with respect and dignity. The Court emphasized that detention carries with itself certain restrictions and distress. The Court also noted persons who have been deprived of liberty do not enjoy fundamental rights to the same extent as those on the outside. However, taken into account that persons detained on remand have not yet been convicted and benefit from presumption of innocence, they are subject only to such restrictions as are necessary for carrying out criminal proceedings and maintenance of peace and order. The Court emphasized that the height of the separation wall has to be such that it ensures privacy while using the toilet.
In the case at hand the Court found that the maximum height of the only separation wall – 1,2 metres – means that the detainee using the toilet is always exposed to the rest of the cell at least from one side. Since the law provided for the maximum height of the separation, the administration of detention places could not apply the law in a manner that ensured the necessary privacy to the detainees. Additionally, the term “wall” was interpreted and applied in a manner that violated the detainees privacy. Therefore the Court found that the particular provision of law was incompatible with the prohibition of inhuman and degrading treatment.