[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF LUTOKHIN v. RUSSIA
(Application
no. 12008/03)
JUDGMENT
STRASBOURG
8 April
2010
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 Lutokhin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 18 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 12008/03) against the Russian
Federation 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 Andrey Borisovich
Lutokhin (“the applicant”), on 12 March 2003.
- The
applicant, who had been granted legal aid, was represented by Ms O.
Preobrazhenskaya. The Russian Government (“the Government”)
were represented by Mr P. Laptev and Mrs V. Milinchuk, former
Representatives of the Russian Federation at the European Court of
Human Rights.
- On
18 September 2006 the President of the First 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 Government objected to the
joint examination of the admissibility and merits of the application.
Having examined the Government's objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968 and lives in Gatchina, Leningrad Region.
A. Criminal proceedings
- On
10 July 2002 the Leningrad Regional Court convicted the applicant of
abduction, robbery, aggravated robbery and extortion, and sentenced
him to seven years' imprisonment.
- The
conviction and sentence were upheld on appeal on 19 December 2002.
- By
a decision of 27 October 2006 the Volgograd Town Court of the
Volgograd Region released the applicant on parole.
B. Conditions of the applicant's detention
- The
applicant was apprehended on 12 April 2001 and was placed in a
temporary confinement ward of the police department of Gatchina
(изолятор
временного
содержания
отдела
внутренних
дел г.
Гатчины).
On 16 April 2001 he was transferred to remand centre IZ-47/1 of Saint
Petersburg (следственный
изолятор
ИЗ-47/1 г.
Санкт-Петербурга)
where he was detained until 11 March 2003.
- The
parties' descriptions of the conditions of his detention differ on a
number of counts.
1. The applicant's account
- The
applicant submitted that his cell in the temporary confinement ward
of the police department of Gatchina (“the temporary
confinement ward”) had measured 20 m2,
had been equipped with twenty-four sleeping places and had been
shared by thirty-six people at the time. Inmates had received no
bedding. The only window had been blocked with an iron blind that had
allowed almost no ventilation.
- As
regards his detention in the remand centre, he had been held in six
cells that had measured 8 m2
and had had six sleeping places. One of them, used for transfer
purposes, had been shared by twenty-five people. The others had
accommodated from eight to thirteen people. Inmates had received no
individual bedding.
- Ventilation
had hardly been existent. The cells had been stuffy and damp. Iron
blinds attached to cell windows had become extremely hot in the
summer. During the winter time, inefficient heating had resulted in
icing up of the exterior wall. The average inside temperature in the
summer had risen up to +50o
C and had fallen to -10o
C in the winter.
- The
lighting had been insufficient and had been turned on round the
clock.
- A
forty-minute walk in a small yard had been allowed only occasionally.
- He
had never witnessed any disinfection measures.
- Hygiene
conditions had been inadequate. A lavatory pan in the cells had not
been partitioned from the living room and had allowed no privacy. It
had not worked properly for a lack of pressure. Hot water had not
been provided in the cells. Detainees had been allowed to shower in a
common room for fifteen minutes once in ten-twelve days.
- The
nutrition and medical assistance had been poor.
2. The Government's account
- The
Government submitted no information as regards the conditions of the
applicant's detention in the temporary confinement ward.
- As
to his detention in the remand centre, during the relevant period of
time the applicant had been held in six cells. The size of the cells
had been 8 m2.
The exact number of inmates could not be established owing to a
destruction of the facility's relevant records.
- All
cells had been equipped with six sleeping places and a dining table.
A sink and a lavatory pan installed in the cells had been separated
from the living area by a partition.
- Each
cell had had a window measured 1 x 1,1 m2
and had been equipped with ventilating shafts.
- The
cells had been lit with artificial lighting. The natural light coming
through the windows had been sufficient to allow reading.
- The
applicant had been provided with an individual sleeping place and
bedding.
- Sanitary
inspections, with regard to the monitoring of the average inside
temperature and of the overall sanitary state of the cells, had been
carried out on a regular basis.
- Meals
had been served three times a day. The nourishment had met official
standards. The quality of the food had been controlled by a medical
unit of the facility.
- The
applicant had received parcels. His state of health had regularly
been monitored and he had been provided with medical assistance when
that had been necessary.
- He
had never complained about conditions of his detention while in the
remand centre
II. RELEVANT DOMESTIC LAW
Law on Detention on Remand
- Article
8 of the Law on Detention on Remand (Federal Law no. 103-FZ of 15
July 1995) provides that persons detained in accordance with a court
order should be held in remand centres.
- According
to Article 9, persons whose detention pending trial has not yet been
ordered by the competent court should be held in temporary
confinement wards. In exceptional circumstances, persons detained in
remand centres can be transferred to and detained in temporary
confinement wards for a period of no longer than ten days during a
month (Article 13).
- Article
23 provides that detainees should be kept in conditions which satisfy
health and hygiene requirements. They should be provided with an
individual sleeping place and be given bedding, tableware and
toiletries. Each inmate should have no less than four square metres
of personal space in his or her cell. Detainees should be given free
of charge sufficient food for maintaining them in good health in line
with the standards established by the Government of the Russian
Federation (Article 22).
III. RELEVANT INTERNATIONAL DOCUMENTS
- The
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT) visited the Russian
Federation from 2 to 17 December 2001. The section of its Report to
the Russian Government (CPT/Inf (2003) 30) dealing with the
conditions of detention in remand establishments and the complaints
procedure read as follows:
45. It should be stressed at the outset that the CPT was
pleased to note the progress being made on an issue of great concern
for the Russian penitentiary system: overcrowding.
When the CPT first visited the Russian Federation in
November 1998, overcrowding was identified as the most important and
urgent challenge facing the prison system. At the beginning of the
2001 visit, the delegation was informed that the remand prison
population had decreased by 30,000 since 1 January 2000. An example
of that trend was SIZO No 1 in Vladivostok, which had registered a
30% decrease in the remand prison population over a period of three
years.
...
The CPT welcomes the measures taken in recent years by
the Russian authorities to address the problem of overcrowding,
including instructions issued by the Prosecutor General's Office,
aimed at a more selective use of the preventive measure of remand in
custody. Nevertheless, the information gathered by the Committee's
delegation shows that much remains to be done. In particular,
overcrowding is still rampant and regime activities are
underdeveloped. In this respect, the CPT reiterates the
recommendations made in its previous reports (cf. paragraphs 25 and
30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50
of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the
report on the 2000 visit, CPT (2001) 2).
...
125. As during previous visits, many prisoners
expressed scepticism about the operation of the complaints procedure.
In particular, the view was expressed that it was not possible to
complain in a confidential manner to an outside authority. In fact,
all complaints, regardless of the addressee, were registered by staff
in a special book which also contained references to the nature of
the complaint. At Colony No 8, the supervising prosecutor indicated
that, during his inspections, he was usually accompanied by senior
staff members and prisoners would normally not request to meet him in
private 'because they know that all complaints usually pass through
the colony's administration'.
In the light of the above, the CPT reiterates its
recommendation that the Russian authorities review the application of
complaints procedures, with a view to ensuring that they are
operating effectively. If necessary, the existing arrangements should
be modified in order to guarantee that prisoners can make complaints
to outside bodies on a truly confidential basis.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that the conditions of his pre-trial detention
had been 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.”
A. The parties' submissions
1. The Government's submissions
- The
Government stated that the detention conditions in remand centre
IZ-47/1 of Saint Petersburg had been compatible with Article 3 of the
Convention. In support of their assertion, the Government adduced
certificates by the governor of the centre confirming that the
applicant had been provided with an individual sleeping place,
bedding, sufficient nutrition and medical assistance and that the
sanitary, hygiene and temperature norms had been duly met.
- They
further submitted that the applicant had never challenged the
adequateness of the conditions of his detention before the domestic
authorities. He could have complained to a prosecutor's office or to
administrative authorities of the Federal Service for the Execution
of Sentences but had failed to avail himself of these opportunities.
- For
these reasons the Government concluded that, apart from being
manifestly ill-founded, the applicant's complaint was also
inadmissible for his failure to exhaust domestic remedies.
2. The applicant's submissions
- The
applicant contested the Government's description of his detention
conditions as factually incorrect. He claimed in particular that the
cell in the temporary confinement ward had allowed 0,5 m2
of personal space per inmate. At the remand centre, in five cells the
personal space available to detainees in average had fluctuated
between 0,5 m2
and 0,8 m2. He
had spent one day in the remand centre's “transfer” cell
that had measured 8 m2 and
had housed at the time twenty-five people.
- In
addition to the severe overcrowding, the applicant underlined the
lack of fresh air and lighting and the fact that a toilet in the
cells in the remand centre had not afforded any privacy and had not
functioned properly. His account of the conditions in both detention
facilities is set out in paragraphs 10-17 above. In support of his
allegations, the applicant adduced photographs picturing two cells
and a recreation yard.
- As
regards the Governments' objection of non-exhaustion, he stated, as a
matter of fact, that any remedies in respect of detention conditions
envisaged under domestic law had proved to be ineffective. In
particular, he referred to the Court's case-law concerning conditions
in Russian penitentiary facilities. He also alleged that on a number
of occasions he had appealed to competent officials but to no avail.
- The
applicant accordingly maintained his complaint.
B. The Court's assessment
1. Admissibility
(a) Simultaneous examination of the
complaints about the conditions of detention in both detention
facilities
- The
Court observes that the applicant complained of two periods of
detention in poor conditions, that is from 12 to 16 April 2001 in the
temporary detention facility of the police department of Gatchina and
from 16 April 2001 to 11 March 2003 in remand centre IZ-47/1 of
Saint Petersburg. In describing the conditions of his detention,
he primarily alleged overcrowding beyond the design capacity and
shortage of sleeping places in both facilities. According to the
applicant, during the two years of his detention he was afforded less
than 1 square metre of personal space, irrespective of the place of
his detention.
- It
is noted that the application was lodged on 12 March 2003 that is
approximately two years after the applicant's detention at the police
department of Gatchina had ended.
- The
Court reiterates that continuous detention in similar conditions,
though in different facilities, may in certain circumstances warrant
examination of the period of detention as a whole (see Benediktov
v. Russia, no. 106/02, § 31, 10 May 2007; Guliyev v.
Russia, no. 24650/02, § 33, 19 June 2008; and Sudarkov
v. Russia, no. 3130/03, § 40, 10 July 2008).
- Having
regard to the continuous nature of the applicant's detention and the
allegation of severe overcrowding as the main characteristic of the
detention conditions in both facilities, the Court finds that the two
periods construe a “continuing situation” which brings
the events concerning the applicant's detention at the police
department of Gatchina within its competence.
(b) Exhaustion of domestic remedies
- The
Court reiterates that Article 35 § 1 of the Convention provides
for a distribution of the burden of proof. It is incumbent on the
Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one available in theory and in practice at
the relevant time, that is to say that it was accessible, capable of
providing redress in respect of the applicant's complaints and
offered reasonable prospects of success (see Selmouni v. France
[GC], no. 25803/94, § 76, ECHR 1999-V, and Mifsud v. France
(dec.), no. 57220/00, § 15, ECHR 2002-VIII). The Court
further reiterates that the domestic remedies must be “effective”
in the sense either of preventing the alleged violation or its
continuation, or of providing adequate redress for any violation that
had already occurred (see Kudła v. Poland [GC], no.
30210/96, §§ 157 and 159, ECHR 2000 XI).
- In
the present case the respondent Government indicated such remedies as
complaining to a prosecutor's office and the Federal Service for the
Execution of Sentences. The Court reiterates that it has already on a
number of occasions examined the same objection by the Russian
Government and dismissed it. The Court held in particular that the
Government had not demonstrated what redress could have been afforded
to the applicant by a prosecutor, a court, or another State agency,
bearing in mind that the problems arising from the conditions of the
applicant's detention were apparently of a structural nature and did
not concern the applicant's personal situation alone (see Moiseyev
v. Russia (dec.), no. 62936/00, 9 December 2004 and Guliyev,
cited above § 34).
- The
Court observes that in the present case the Government also failed to
substantiate the effectiveness of the suggested remedies and adduce
satisfactory evidence. For that reason, it considers that the mere
mention of a remedy is too speculative to be deemed a fulfilment of
the Government's burden of proof. Accordingly, it dismisses their
plea of non-exhaustion.
(c) Compliance with other admissibility criteria
- On
the basis of the material submitted, the Court observes that the
applicant's 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.
2. Merits
(a) General principles
- The
Court reiterates that Article 3 of the Convention enshrines one of
the most fundamental values of a democratic society. It prohibits in
absolute terms torture or inhuman or degrading treatment or
punishment, irrespective of the circumstances and the victim's
behaviour (see, among other authorities, Labita v. Italy [GC],
no 26772/95, § 119, ECHR 2000-IV). However, in order to fall
within the scope of Article 3, ill-treatment must attain a minimum
level of severity. 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
Ireland v. the United Kingdom, 18 January 1978, §
162, Series A no. 25).
- 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. 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, 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).
- The
extreme lack of space in a prison cell weighs heavily as an aspect to
be taken into account for the purpose of establishing whether the
impugned detention conditions were “degrading” from the
point of view of Article 3 (see Karalevičius v. Lithuania,
no. 53254/99, § 36, 7 April 2005). In its previous cases where
applicants had at their disposal less than 3 m² of personal
space, the Court found that the overcrowding was so severe as to
justify of itself a finding of a violation of Article 3 of the
Convention (see, among many others, Lind v. Russia,
no. 25664/05, §§ 59-60, 6 December 2007;
Kantyrev v. Russia, no. 37213/02, § 50-51, 21 June 2007;
Andrey Frolov v. Russia, no. 205/02, §47-49, 29 March
2007; Labzov v. Russia, no. 62208/00, §§
44-46, 16 June 2005).
- Lastly,
the Court reiterates that it must be satisfied that the conditions of
the applicant's detention constituted treatment which exceeded the
minimum threshold for Article 3 of the Convention (see Maltabar
and Maltabar v. Russia, no. 6954/02, §
96, 29 January 2009) and in assessing the circumstances of the case
and the evidence presented, the Court has generally applied the
standard of proof “beyond reasonable doubt” (see Ireland,
18 January 1978, § 161, Series A no. 25).
(b) Application of these principles to the present
case
- The
Court observes that the applicant did not support his allegations as
to the appalling detention conditions with sufficient evidence. The
Government, in turn, submitted no information regarding the
applicant's four-day detention in the temporary confinement ward, as
had the exact number of detainees per cell held together with the
applicant in the remand centre.
- In
this connection, it should be noted that Convention proceedings do
not in all cases lend themselves to a rigorous application of the
principle affirmanti incumbit probatio (he who alleges
something must prove that allegation), because in certain instances
the respondent Government alone have access to the information
capable of corroborating or refuting the applicant's allegations. A
failure on the Government's part to submit such information without a
satisfactory explanation may give rise to the drawing of inferences
as to the well-foundedness of these allegations (see Timurtaş
v. Turkey, no. 23531/94, §§ 66 and 70, ECHR
2000-VI).
- Having
regard to the above principles and the fact that the Government did
not submit any convincing relevant data, the Court accepts the
applicant's argument that his cell in the temporary confinement ward
had been severely overcrowded.
- As
regards the conditions in the remand centre from 16 April 2001 until
11 March 2003, the Court will concentrate on the allegations that
have been presented or are undisputed by the respondent Government
(see §§ 18-27 above).
- The
Court observes that the applicant was detained in six cells that
measured 8 m2
and had six sleeping places. It follows that the design capacity of
these cells allowed 1,3 m2 of
floor area per inmate. Given the fact that each cell was equipped
with bunks, a dining table, a sink and a lavatory pan which took
their space, it appears that the actual living area per inmate was
dramatically small. This state of affairs in itself constituted a
violation of Article 3 of the Convention (see § 51 above).
- Having
regard to its case-law on the subject, the material submitted by the
parties and the findings above, the Court concludes that, though not
ill-intended, the detaining of the applicant for approximately one
year and eleven months in a cramped cell twenty-four hours a day,
save for one-hour daily walk, must have caused him such intense
physical discomfort and mental suffering which the Court considers
amounted to inhuman and degrading treatment within the meaning of
Article 3 of the Convention.
- There
has accordingly been a violation of this provision.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant raised various complaints, regarding the criminal
proceedings against him, under Article 6 of the Convention and
Article 4 of Protocol No. 7 to the Convention.
- Having
considered his submissions in the light of all the material in its
possession, the Court finds that, in so far as the matters complained
of are within its competence, they do not disclose any appearance of
a violation of the rights and freedoms set out in the Convention and
its Protocols.
- It
follows that these parts of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 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 100,000 euros (EUR) in respect of non-pecuniary
damage.
- He
also claimed 297,350 roubles (RUB) and 4,000 dollars (USD) in respect
of pecuniary damage that he linked to university's fees that he had
lost because of his arrest, the value of parcels he had received from
his relatives while in detention and, finally, costs for a dental
treatment he had had after his release.
- The
Government considered the applicant's claims for pecuniary and
non-pecuniary damages unsubstantiated and excessive respectively.
- The
Court notes that it has found in the present case a violation of
Article 3 on account of the inhuman and degrading conditions of the
applicant's detention in the temporary confinement ward and the
remand centre during one year and eleven months. It considers that
the applicant's suffering cannot be compensated for by a mere finding
of a violation. At the same time, the amount claimed by the applicant
appears excessive. Making assessment on an equitable basis, the Court
awards the applicant EUR 18,000 (eighteen thousand euros), plus
any tax may be chargeable on it.
- On
the other hand, the Court does not discern a causal link between the
violation found and the pecuniary damage alleged. It therefore
rejects this claim.
B. Costs and expenses
- Without
mentioning a particular sum, the applicant claimed reimbursement for
legal costs incurred in the proceedings before the Court.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. Taking into account that the amount of EUR
850 has already been paid to the applicant by way of legal aid, the
Court does not consider it necessary to make an award under this
head.
C. 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 complaint concerning the conditions
of the applicant's detention in the temporary confinement ward of the
police department of Gatchina and remand centre IZ-47/1 of Saint
Petersburg admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
3 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 18,000
(eighteen thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Russian roubles
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 8 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
