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FIFTH
SECTION
CASE OF KOCHETKOV v. ESTONIA
(Application
no. 41653/05)
JUDGMENT
STRASBOURG
2 July 2009
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Kochetkov v.
Estonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Renate Jaeger,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 9 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41653/05) against the Republic
of Estonia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Mikhail Kochetkov (“the
applicant”), on 27 October 2005.
- The
Estonian Government (“the Government”) were represented
by their Agents, Ms M. Hion and subsequently Ms M. Kuurberg, of the
Ministry of Foreign Affairs. The Government of the Russian Federation
did not make use of their right to intervene under Article 36 §
1 of the Convention.
- The
applicant alleged that the conditions of his detention in Narva
Arrest House had amounted to treatment in violation of Article 3 and
that the domestic authorities had failed to provide adequate redress
for this violation.
- On
30 August 2007 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1979 and is currently serving a sentence in
Viru Prison in Jõhvi.
A. The applicant's detention in Narva Arrest House
1. The applicant's submissions on the facts
- On
19 April 2005 the applicant was transferred from Tallinn Prison to
Narva for trial at the local city court. He was placed in Narva
Arrest House (arestimaja) where he stayed until 2 May 2005.
- Upon
his arrival at the arrest house, the applicant was searched and
several personal-hygiene items (razor, shaving foam, comb, set for
cutting nails, etc.) were taken from him. He was examined by a nurse,
to whom he complained that he felt ill and had a pain in his throat.
The nurse did not take any measures.
- Subsequently,
he was sent to a cell designed to accommodate four persons. However,
he was the eighth inmate in the cell and had to sleep on the cold and
dirty floor. He was given bed sheets and a pillowcase but no
mattress, pillow or blanket. Moreover, he had to sit down all the
time as there was no room to walk or to stretch out since part of the
floor area was taken up by the toilet corner, sink, table and
benches, and the place for inmates' personal belongings. The
condition of the cell was insanitary; condensation was dripping from
the walls and there was a lack of oxygen as the cell was full of
cigarette smoke. There was no possibility to wash or dry clothes.
There was one plate and one spoon for three inmates; instead of mugs,
plastic yoghurt pots had to be used for tea or water. There was a
constant queue to use the sink or the toilet. The toilet was not
separated from the rest of the cell. In these conditions the common
cold he had had transformed into a long-lasting illness.
- On
20 April 2005 the nurse examined the applicant and established that
he had a swollen throat. He was given Biseptol pills. His request to
be examined by an external specialist was refused because of the cost
and the long waiting lists to get a doctor's appointment.
- The
applicant made several complaints concerning the conditions of his
detention to the head of Narva Arrest House but received no reply. He
also wrote to the Ministry of Justice and to the Police Board, who
informed the applicant in reply that they were aware of the
situation.
2. The Government's submissions on the facts
- Narva
Arrest House is located on the third (upper) floor of the regional
police headquarters. The building was completed in two phases, the
older part in the 1960s and the new part in the 1970s. Since 2004,
that is, after the CPT's visit and recommendations, the following
improvements have been made to the arrest house: new lighting has
been installed in the cells, the ventilation system has been
completely refurbished, the showers have been refurbished and access
to national daily newspapers has been ensured to detainees.
- Cells
nos. 3 and 11, in which the applicant was held, have glass block
windows measuring 1.5 m by 1 m, bunks with metal frames, a
central-heating radiator, daytime lighting and night lights, a
secluded corner with a toilet and cold water for daily hygiene
requirements. The detainees can also use hot water.
- On
19 April 2005 the applicant was placed in cell no. 11, which was
meant for six persons. The size of the cell was 12.5 sq. m. There
were seven detainees in the cell.
- On
23 April 2005 the applicant was placed in cell no. 3, which was meant
for four persons and measured 12 sq. m. On several days there were
six to eight persons in the cell.
- In
respect of the items taken away from the applicant, the Government
pointed out that they had been given back to him on 3 May 2005.
- In
respect of the applicant's state of health, the Government noted that
according to his medical records, he had been ill before he had been
placed in Narva Arrest House. He had undergone several health
examinations and had been provided with treatment. From 5 December to
15 December 2005 he had been admitted to hospital, diagnosed with
thyroid enlargement and prescribed Polivit; it had been found that he
did not need special treatment.
B. Court proceedings concerning the conditions of the
applicant's detention
- On
16 May 2005 the applicant lodged a complaint with the Jõhvi
Administrative Court (halduskohus), claiming 250,000 kroons
(EEK – corresponding approximately to 16,000 euros (EUR)) in
compensation for the health damage and mental suffering caused by his
degrading treatment at Narva Arrest House.
- The
Administrative Court heard the case on 5 July 2005 in the presence of
the applicant and a representative of the Ida Police Prefecture. A
nurse from the arrest house gave evidence as a witness. According to
her, inmates had been given mattresses and blankets upon their
arrival.
- In
a judgment of 19 July 2005 the court dismissed the complaint. It
established that the conditions at Narva Arrest House had not been in
compliance with the requirements under the applicable legislation.
The applicant had been kept in two different cells, designed
respectively for six and four inmates, whereas there had actually
been seven or eight persons in the cells.
- However,
the court considered that compensation for non-pecuniary damage could
be awarded only if it was established that certain officials had been
at fault for consciously placing the applicant in degrading
conditions or for taking actions aimed at torturing or degrading him.
According to the court, this had not been established as there was no
evidence that the police officers had wished to torture or degrade
the applicant or that the unsatisfactory conditions at Narva Arrest
House had been created especially for him.
- In
respect of the damage to the applicant's health, the court found that
he had already been ill on his arrival at the arrest house. He had
received treatment during his stay there. The court considered that
the fact that he needed subsequent treatment in Tallinn Prison did
not enable it to conclude that the treatment received in Narva had
been of low quality or that he should have been taken to hospital.
There was no reason to assume that he could have been given medical
treatment producing considerably better results during his short stay
in Narva.
- In
a judgment of 16 November 2005 the Tartu Court of Appeal
(ringkonnakohus) dismissed an appeal by the applicant. It
agreed with the lower court's finding that the discomfort caused by
the overcrowding did not mean that the administration of the arrest
house had degraded the applicant's dignity and thereby caused damage
to him. Furthermore, the Administrative Court had correctly found
that the applicant had failed to prove that any damage had been
caused to his health in connection with his stay at Narva Arrest
House.
- On
18 January 2006 the Supreme Court (Riigikohus) decided not to
allow an appeal by the applicant.
II. FINDINGS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION
OF TORTURE AND INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT (CPT)
- In September 2003 the CPT carried out a visit to
Estonia. On 27 April 2005 it published a report of its visit
(CPT/Inf (2005) 6), which contains the following findings:
“26. The material conditions under
which detained persons (in police custody, on remand or sentenced)
were being held in certain police arrest houses, including those in
Kohtla-Järve and Narva, were appalling; conditions also remained
very poor in Jõgeva.
Detainees were locked up 24 hours per day - with no
outdoor exercise - in cells that were filthy, dimly lit (with no
access to natural light, and poor artificial lighting) and severely
overcrowded (up to 15 persons in a cell of 15 m²). The
unpartitioned lavatories - where persons were obliged to relieve
themselves in the direct presence of their cellmates - exacerbated
the effects of the very poor ventilation, rendering the already dank
air nauseating. In many cases, persons were provided with no
mattresses and blankets, and lacked basic personal hygiene products.
The cumulative effect of the execrable material conditions and the
impoverished regime could well be described as inhuman and degrading.
This state of affairs was exacerbated by the fact that persons were
being held under such conditions for prolonged periods (i.e. for up
to three months and, on occasion, even longer).
As regards, more particularly, the arrest house at
Narva, following complaints made by detainees, the Office of the
Legal Chancellor performed an on-the-spot inspection of the
establishment in February 2003. In a letter subsequently addressed to
the Minister of the Interior, the Legal Chancellor recommended inter
alia that improvements be made to lighting, and that at least one
daily hour of outdoor exercise be offered to detainees; further, he
indicated that the internal regulations violated Section 45 (1) of
the Imprisonment Act of 2000, which relates to 'requirements of
construction technology, health and hygiene', as well as lighting. It
is clear from the delegation's findings that no action has been taken
on the Legal Chancellor's recommendations.
...
28. An impoverished regime - 24-hour in-cell
lock-up - remained the norm for everyone detained in an arrest house.
Of the six arrest houses visited by the delegation, Jõgeva was
the only one where detainees were being offered the opportunity to
take outdoor exercise, albeit only twice a week or so. Even if a
particular establishment was equipped with yards, staff shortages
were cited as reasons for not granting outdoor exercise to detainees.
...
...
30. ... [A]t the end-of-visit talks on 30
September 2003, the delegation made an immediate observation
concerning Kohtla-Järve and Narva Police Arrest Houses, as well
as other arrest houses where similar conditions of detention prevail.
It requested the Estonian authorities to take urgent steps to improve
conditions of detention in police arrest houses and, in particular,
to ensure that:
(i) all persons held overnight in an arrest house are
immediately provided with a clean mattress and clean blankets as well
as with personal hygiene products (toilet paper, soap, tooth brush
and paste, towel, sanitary towels, etc.);
(ii) all persons who are detained for prolonged periods
are granted at least one hour of outdoor exercise per day;
(iii) all cells are fitted with adequate artificial
lighting.
31. In response to the above-mentioned immediate
observation, the Estonian authorities acknowledged that the situation
was not satisfactory, indicating that conditions in arrest houses
remain an issue of concern to them and that 'the improvement of the
situation is ongoing'.
Responding to item (i) above, the authorities indicated
that 'a sufficient number of bedsheet sets have been provided ...;
bedsheets are changed regularly'. It was further indicated that
persons are provided with 'basic toiletries, if necessary'. The CPT
wishes to receive confirmation that 'bedsheet sets' include clean
mattresses and clean blankets.
With reference to item (ii), it was affirmed that, of
the 17 arrest houses in Estonia, only four have 'appropriate walking
yards', where 'persons have the possibility to stay in the open air
for an hour a day'; in the remaining 13 establishments, construction
or renovation of walking yards was envisaged for 2004.
As for item (iii), it was indicated that 'artificial
lighting and ventilation have been improved' in six arrest houses and
will be brought 'into compliance' in the remaining arrest houses in
2004.
...
53. More generally, the CPT has noted that the average
amount of space per remand prisoner in Estonia is 3 m². Such an
average does not offer a satisfactory amount of living space; the
Committee recommends that the Estonian authorities strive to maintain
a standard of at least 4 m² of living space per prisoner in
multi-occupancy cells, and that official capacities be calculated
accordingly.”
- In
their responses to the CPT report, published on 27 April 2005
(CPT/Inf (2005) 7), the Government submitted the following, in so far
as relevant:
“By the end of 2003 the police authorities had
eliminated the following problems outlined by the CPT: missing bed
accessories and toilet articles were bought – to be given to
those people who do not have them.
...
After the visit of the CPT delegation to the custodial
institutions and arrest houses in September 2003 the Police Board
issued on 18 November 2003 order No PA12-1.4/249 to the police
prefects, 'The improvement of accommodation and health care
conditions in arrest houses', which provided that police prefectures
must buy a sufficient number of bed linen sets (mattress, blanket,
sheet, pillow, pillow case) and arrange the regular changing and
cleaning of these. Clean bed accessories must be given to each person
detained in the arrest house, except those who have been brought in
for detoxification.
All police authorities have implemented this order.
...
The Police Board has developed instructions for the
initial medical examination to be performed at the time of admitting
the person into the arrest house and for sanitary treatment. After
these instructions enter into force each person admitted to a arrest
house is granted a medical examination within a reasonable time.
Medical examinations will be performed by a doctor or a medical
assistant. At the latest on January 1, 2005 all police authorities
will have signed agreements with a doctor or a medical assistant as
regards the performance of initial medical examinations.”
III. RELEVANT DOMESTIC LAW AND PRACTICE
- Section
9 of the State Liability Act (Riigivastutuse seadus), as in
force at the material time, provided:
“(1) A natural person may claim financial
compensation for non-pecuniary damage resulting from wrongful
degradation of dignity, damage to health, deprivation of liberty,
violation of the inviolability of the home or private life or of the
confidentiality of correspondence, or defamation of the person's
honour or good name.
(2) Non-pecuniary damage shall be compensated for in
proportion to the gravity of the offence, taking into account the
form and gravity of the guilt.”
- In
a judgment of 22 March 2006 the Administrative Law Chamber of the
Supreme Court (case no. 3-3-1-2-06) quashed the judgment of
10 November 2005 of the Tartu Court of Appeal and upheld the
Tartu Administrative Court's judgment of 19 May 2005 (case no.
3-637/04) whereby the complainant had been awarded EEK 10,000 (EUR
640) in respect of non-pecuniary damage. The case concerned a
complaint by an inmate of a prison who had been placed in a
punishment cell. The Supreme Court found that the complainant's
dignity had been harmed by his unlawful placement in the punishment
cell as well as by the conditions in the cell. The Supreme Court
emphasised that it was an obligation of the prison administration to
ensure that the conditions in the prison were in compliance with the
applicable requirements and that the prison authorities were
therefore responsible for the damage caused to the complainant. The
Supreme Court relied on section 9 of the State Liability Act.
- In
a judgment of 28 March 2006 the Administrative Law Chamber of the
Supreme Court (case no. 3-3-1-14-06) quashed the Tartu Administrative
Court's judgment of 8 June 2005 and the Tartu Court of Appeal's
judgment of 9 November 2005 and held that the unlawful keeping of a
prisoner in a punishment cell had amounted to degradation of his
dignity and that he had thereby sustained non-pecuniary damage.
Relying on section 9 of the State Liability Act, the Supreme Court
awarded the complainant EEK 3,000 (EUR 190).
- In
a judgment of 26 May 2006, the Tallinn Administrative Court (case no.
3-167/2004) awarded two complainants EEK 8,000 (EUR 510) each for
non-pecuniary damage they had sustained as a result of the
degradation of their dignity owing to the poor conditions of their
detention. The court, inter alia, referred to the judgment of
the European Court of Human Rights in the case of Alver v. Estonia
(no. 64812/01, 8 November 2005). One of the complainants appealed
against the judgment and on 25 January 2007 the Tallinn Court of
Appeal increased the amount of his award to EEK 15,000 (EUR 960).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that the conditions of his detention in Narva
Arrest House had amounted to treatment contrary to Article 3 of the
Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested that argument.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Submissions of the parties
-
The Government admitted that the conditions in several arrest houses
were difficult but emphasised that the authorities had taken
significant steps to reduce the number of detainees and had also
built new prisons – in 2001 a new Tartu Prison and in 2008 a
new Viru Prison had been opened. Viru Prison in Jõhvi included
an arrest house for 150 detainees.
- The
Government pointed out that the applicant's placement in the arrest
house had not been unlawful in itself and that the authorities had
had no intention of treating him in an inhuman or degrading manner.
The conditions in the arrest house had resulted purely from its poor
general material state. In respect of the applicant's health, the
Government noted that he had already had health problems before his
detention; he had had an opportunity to consult the medical staff at
the arrest house on three occasions during his 14-day stay there and
had been provided with treatment. There was no evidence that the
applicant's health had deteriorated during his detention in the
arrest house, that the treatment had been of insufficient quality or
that he should have been placed in a hospital. The Government
emphasised that although the Administrative Court had found that the
conditions of his detention had not been in conformity with the
requirements of the law, it had not been proved that any damage had
been caused to the applicant's health during his stay in the arrest
house. This had been an important reason why the applicant had not
been awarded financial compensation.
- The
Government also emphasised that the duration of the applicant's stay
in the arrest house had been relatively short. They considered that
the inconveniences caused to the applicant had not attained the
minimum level of severity required to fall within the scope of
Article 3.
- The
applicant maintained his complaint. In respect of the detention
conditions, he contested the Government's allegation that the toilet
corner had been secluded and argued that it had been degrading to use
the toilet, which was not separated from the rest of the room.
Furthermore, he had had no practical possibility of complaining about
smoking in the cell as most of his fellow detainees had been smokers
and his opinion would have been suppressed. He also emphasised that
there had been no possibility for outside walks.
- As
concerns his health, he admitted that he had not been feeling well on
his arrival at Narva Arrest House. However, he argued that this fact
had only increased the authorities' responsibility for placing him in
such terrible conditions. He was dissatisfied with the medical
treatment he had been given and that he had not been taken to
hospital. As a result, he had developed a chronic pain in his throat,
which had lasted for more than six months. He argued that the
domestic courts had failed to properly establish the facts concerning
his state of health.
- In
respect of the duration of his stay at Narva Arrest House, he noted
that treatment did not have to last a long time in order to be
degrading. Moreover, his health problems had lasted for half a year.
2. The Court's assessment
- The
Court reiterates that Article 3 of the Convention enshrines one of
the most fundamental values of democratic society. It prohibits in
absolute terms torture and inhuman or degrading treatment or
punishment, irrespective of the circumstances and the victim's
behaviour (see Labita v. Italy [GC], no. 26772/95, §
119, ECHR 2000 IV). However, 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 level of severity is
relative; it depends on all the circumstances of the case, such as
the duration of the treatment, its physical and mental effects and,
in some cases, the sex, age and state of health of the victim (see
Valašinas v. Lithuania, no. 44558/98, § 101,
ECHR 2001 VIII).
- The
Court has consistently stressed that the suffering and humiliation
involved must in any event go beyond that inevitable element of
suffering or humiliation connected with a given form of legitimate
treatment or punishment. Measures depriving a person of his liberty
may often involve such an element. Yet it cannot be said that
detention on remand in itself raises an issue under Article 3 of the
Convention. Nor can that Article be interpreted as laying down a
general obligation to release a detainee on health grounds or to
place him in a civil hospital to enable him to obtain a particular
kind of medical treatment. Nevertheless, the State must ensure that a
person is detained in conditions which are compatible with respect
for his human dignity, that the manner and method of the execution of
the measure do not subject him 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
health and well-being are adequately secured (see Kudła v.
Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000 XI).
When assessing conditions of detention, account has to be taken of
the cumulative effects of these conditions, as well as of specific
allegations made by the applicant (see Dougoz v. Greece, no.
40907/98, § 46, ECHR 2001 II). The length of the
period during which a person is detained in the particular conditions
also has to be considered (see Kalashnikov v. Russia, no.
47095/99, § 102, ECHR 2002 VI, and Kehayov v. Bulgaria,
no. 41035/98, § 64, 18 January 2005).
- Turning
to the present case, the Court notes that the applicant complained
about the conditions in which he was detained between 19 April and 2
May 2005 in Narva Arrest House. The parties agreed that he was
detained in two different cells measuring 12.5 sq. m and 12 sq. m and
that these rooms had been designed for six and four persons
respectively, whereas up to eight persons had been placed in the
cells at the material time. Thus, the Court notes that at times the
available floor area per person was limited to 1.5 sq. m. Moreover,
part of the cells' floor surface, apart from the bunks, was taken up
by the toilet corner and the sink; in the applicant's submission
there were also a table and benches. The Court considers that such
accommodation cannot be regarded as attaining acceptable standards.
Severe overpopulation is something which in itself raises an issue
under Article 3 of the Convention (see Kalashnikov, cited
above, § 97). Moreover, unlike in the Valašinas case,
in the present case the scarce amount of space was not compensated
for by the detainees' enjoyment of a wide freedom of movement outside
the cell (see Valašinas, cited above, § 107).
Indeed, according to the CPT report, the detainees were locked up 24
hours a day with no outdoor exercise (see paragraph 24 above).
- Furthermore,
the Court notes that according to the applicant, he was given only
bed sheets and a pillow case but no mattress, pillow or blanket. This
description coincides with the CPT's finding that in many cases
detainees were provided with no mattresses and blankets. In the light
of the above and the fact that the number of persons placed in the
cells was higher than the number of designated places, the Court
concludes that the inmates did not have separate sleeping berths and
that the applicant's allegation that he had to sleep on the floor
appears plausible.
- The
Court further notes that the Government did not dispute the
applicant's allegation concerning the shortage of dining utensils.
- The
Court observes that the parties' submissions differ as to whether or
not the toilet corner was secluded from the rest of the cell. Their
submissions also differ as to the quality of the air in the cells:
according to the applicant, the cells were full of cigarette smoke
and there was a lack of oxygen, whereas the Government contended that
the ventilation system had been completely refurbished at Narva
Arrest House after the CPT visit. The Court has no reason to call
into question the Government's submissions as to the renovation work
carried out at the arrest house. It notes, however, that according to
the CPT report, in 2003 the lavatories had been unpartitioned and the
ventilation very poor, rendering the already dank air nauseating (see
paragraph 24 above). Having not been provided with the exact dates on
which the renovation work was carried out, the Court considers that
it can legitimately conclude that the improvements described by the
Government were effected after the applicant's detention in the
arrest house.
- In
respect of the applicant's health, the Court notes that the parties
agreed that he had not been feeling well at the time of his arrival
at Narva Arrest House and that he had been examined by a nurse and
given medicines. The Court is unable to conclude on the basis of
existing evidence that the applicant's situation required his
admission to a hospital or that his health condition deteriorated
because of the detention conditions.
- Finally,
as regards the Government's submissions that the authorities had no
desire to cause physical or mental suffering to the applicant, the
Court reiterates that, although the question whether the purpose of
the treatment was to humiliate or debase the victim is a factor to be
taken into account, the absence of any such purpose cannot exclude a
finding of a violation of Article 3 (see Peers v. Greece, no.
28524/95, § 74, ECHR 2001 III, and Kalashnikov,
cited above, § 101).
- The
foregoing considerations are sufficient to enable the Court to
conclude that the conditions of the applicant's detention, in
particular the overcrowding, inadequate ventilation, impoverished
regime and poor hygiene conditions, were sufficient to cause distress
and hardship of an intensity exceeding the unavoidable level of
suffering inherent in detention. The Court considers that the
conditions of the applicant's detention in the present case were such
that the above conclusion is not affected by the relative shortness
of his detention in the arrest house. The Court will, however, take
the duration of the detention into account in determining the
applicant's just satisfaction claim.
- There
has accordingly been a violation of Article 3 of the Convention in
respect of the conditions of the applicant's detention in Narva
Arrest House.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained that the courts had lacked impartiality and had
wrongly assessed the evidence. He was dissatisfied that he had not
been awarded compensation and with the outcome of the proceedings in
general. He invoked Article 6 § 1. However, the Court considers
that this complaint should be examined under Article 13 of the
Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government disagreed with the applicant's submission.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Submissions of the parties
-
The Government noted that the applicant had brought his case before
an administrative court. They emphasised that in order for a remedy
to be effective it did not necessarily have to bring success to the
applicant in a particular instance. In the present case the domestic
courts had found that the conditions of detention at the arrest house
had been inappropriate and incompatible with the requirements of law.
The fact that the applicant had been awarded no compensation was not
decisive for a finding as to whether an effective remedy existed or
not. He had based his claim for compensation on the alleged
deterioration of his health at the arrest house, but this had not
been proved in court. The Government also referred to cases before
the domestic courts in which complaints concerning the conditions in
custodial institutions had been successful and financial compensation
had been awarded to the complainants.
- The
applicant considered that it was irrelevant whether the authorities
had purposefully created the degrading conditions of detention for
him as he had been the person who had suffered inhuman treatment and
had sustained damage to his health.
2. The Court's assessment
- The
Court reiterates that Article 13 of the Convention guarantees
the availability at national level of a remedy to enforce the
substance of Convention rights and freedoms in whatever form they
might happen to be secured in the domestic legal order. The effect of
Article 13 is thus to require the provision of a domestic remedy to
deal with the substance of an “arguable complaint” under
the Convention and to grant appropriate relief (see, among many other
authorities, Kudła, cited above, § 157).
- The
Court has held that the scope of the Contracting States' obligations
under Article 13 varies depending on the nature of the applicant's
complaint; however, the remedy required by Article 13 must be
“effective” in practice as well as in law (see, for
example, İlhan v. Turkey [GC], no. 22277/93, § 97,
ECHR 2000-VII). It has also considered that the “effectiveness”
of a “remedy” within the meaning of Article 13 does not
depend on the certainty of a favourable outcome for the applicant
(see Kudła, cited above, § 157).
- In the case of a breach of Articles 2 and 3 of the
Convention, which rank as the most fundamental provisions of the
Convention, compensation for the non-pecuniary damage flowing from
the breach should in principle be part of the range of available
remedies (see McGlinchey and Others v. the United Kingdom,
no. 50390/99, §§ 63 and 66, ECHR 2003 V; and Z
and Others v. the United Kingdom [GC], no. 29392/95, § 109,
ECHR 2001 V).
- Turning
to the present case, the Court notes that the applicant lodged a
complaint concerning the conditions of his detention with the
competent administrative courts and claimed compensation for the
non-pecuniary damage he had sustained as a result of the
deterioration of his health and the mental suffering caused by his
degrading treatment at Narva Arrest House. The domestic courts
established that the conditions at the arrest house had not been in
compliance with the requirements under the applicable legislation.
However, they found that the State Liability Act allowed monetary
compensation for non-pecuniary damage only if it was established that
certain officials had been at fault for consciously placing a person
in degrading conditions or for taking actions aimed at torturing or
degrading him.
- Limiting
its analysis to the conditions of detention generally – and not
to the alleged deterioration of the applicant's health – and
leaving aside the question whether the domestic courts can be said to
have acknowledged that the conditions of the applicant's detention
amounted to a violation of his rights under Article 3, the Court
considers that the domestic courts, interpreting and applying the law
as they did in the present case, put themselves in a position where
they were not capable of providing an effective remedy for the
applicant. In substance, they found that no redress could be afforded
to the applicant in the absence of any fault or intention to degrade
him on the part of specific officials. The Court considers such an
approach too restrictive. It reiterates in this context that although
the question whether the purpose of the treatment was to humiliate or
debase the victim is a factor to be taken into account, the absence
of any such purpose cannot exclude a finding of a violation of
Article 3 (see Peers, cited above, § 74; and Kalashnikov,
cited above, § 101).
- The
Court takes note of the domestic cases referred to by the Government,
in which the administrative courts awarded detainees monetary
compensation for non-pecuniary damage in situations similar to the
present one. However, the existence of such case-law does not change
the fact that in the present case the domestic courts applied a
requirement that compensation was only available where someone was
found to have been at fault for degrading the person concerned.
- Accordingly,
the Court considers that in the present case there has been a
violation of Article 13 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed EEK 250,000 kroons (EUR 16,000) in respect of the
non-pecuniary damage caused by his detention in degrading conditions
and the damage caused to his health.
- The
Government requested the Court to award the applicant a reasonable
sum for non-pecuniary damage, should it find a violation of Article 3
and consider that the domestic courts' finding that the conditions of
the applicant's detention had not been in compliance with the legal
requirements did not constitute sufficient redress. They considered
the applicant's claim excessive.
- The
Court finds that the applicant has suffered non-pecuniary damage as a
result of the violations found. Deciding on an equitable basis, and
having regard to the specific circumstances of the present case,
which involved a relatively short period of detention in degrading
conditions, the Court awards the applicant EUR 1,000 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Estonian kroons at the
rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 2 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
