FIRST SECTION

CASE OF DOROGAYKIN v. RUSSIA

(Application no. 1066/05)

JUDGMENT

STRASBOURG

10 February 2011

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 Dorogaykin v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
	Christos Rozakis, President,
	Nina Vajić,
	Anatoly Kovler,
	Elisabeth Steiner,
	Khanlar Hajiyev,
	Dean Spielmann,
	Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 18 January 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 1066/05) 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 Vyacheslav Vladimirovich Dorogaykin (“the applicant”), on 18 November 2004.
2.  The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the representative of the Russian Federation at the European Court of Human Rights.
3.  On 17 December 2008 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 § 1).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1974 and is currently serving his sentence in correctional colony IK-10 in Rubtsovsk in the Altay Region.
A.  Criminal proceedings against the applicant
5.  On 10 July 2004 the applicant was charged with manslaughter. On the same date by a decision of the Leninskiy District Court of Barnaul (“District Court”) he was placed in detention pending trial.
6.  On 27 April 2005 the District Court convicted him as charged and sentenced him to eight years’ imprisonment. On 16 June 2005 the Altay Regional Court upheld the trial court’s judgement with minor changes.
B.  Conditions of the applicant’s detention
7.  In the period from 13 July 2004 to 10 July 2005 the applicant was detained in remand prison IZ-22/1 in Barnaul in the Altay Region.
8.  The parties’ descriptions of his detention conditions differ on a number of counts.
1.  The applicant’s account
9.  According to the applicant, he was detained in the following cells:
- from 20 July to 25 October 2004 in cell no. 2 that housed from 9 to 16 inmates;
- from 25 October to 3 December 2004 in cell no. 52 that housed from 19 to 25 inmates;
- from 3 December 2004 to 27 April 2005 in cell no. 41 that housed from 14 to 18 inmates;
- from 27 to 29 April 2005 in cell no. 29 that housed more than 15 inmates;
- from 29 April to 10 July 2005 in cell no. 142 that housed from 18 to 24 inmates.
10.  The applicant did not provide a detailed description of each cell but maintained in general terms that all cells had been overcrowded, that he had not had an individual sleeping place and that ventilation and sanitary conditions had been inadequate. Owing to the unsatisfactory sanitation, he had suffered skin diseases and psychological problems. No adequate medical assistance had been provided to him.
11.  The applicant complained about conditions of his detention in remand prison IZ-22/1 to various authorities. On one occasion, the Prosecution Office of the Altay Region commissioned an inspection to investigate his allegations. According to a report of 18 February 2005, the inspector found that at the material time the applicant was not provided with an individual sleeping place. He stated that the failure of the prison authorities to provide detainees with individual sleeping places was a continuous problem resulting from a slum state of one of the prison wings. Other aspects of the applicant’s detention, notably medical assistance, sanitation and communication with authorities, were found to be satisfactory.
2.  The Government’s account
12.  On the basis of certificates and photographs prepared by the prison administration in February 2009, the Government submitted that the applicant had been detained in the following cells:
- from 13 July to 25 October 2004 in cell no. 2 measuring 12.8 square metres and accommodating maximum three inmates;
- from 25 October to 3 December 2004 in cell no. 52 measuring 23.9 square metres and accommodating maximum five inmates;
- from 3 December 2004 to 27 April 2005 in cell no. 41 measuring 21 square metres and accommodating maximum five inmates;
- from 27 to 29 April 2005 in cell no. 29 measuring 19.7 square metres and accommodating maximum four inmates;
- from 29 April to 10 July 2005 in cell no. 142 measuring 20.3 square metres and accommodating maximum five inmates.
13.  The Government further stated that the applicant’s cells had been ventilated through casement windows and had in addition been equipped with ventilation shafts. The average temperature and the average level of humidity had met sanitary and hygiene requirements. Cleaning and disinfection of the cells and checks on the correct operation of the systems of ventilation, sewage, water-supply and heating had been carried out on a regular basis.
14.  With reference to a certificate by the detention facility’s governor and statements by officers B., G., and Ch. – all documents dated February 2009 – the Government stated that the applicant had been provided with an individual sleeping place. Furthermore, a copy of his registration card reflected that, upon arrival at the facility, he had been given individual bedding items.
15.  The Government further asserted that all cells had been equipped with a sink and a lavatory that had been separated from the living area by a partition of 1.1 metre in height. Showers had been available once a week with a simultaneous change of bedding.
16.  As to the applicant’s health, it had been regularly monitored and he had been provided with adequate medical assistance when that had been necessary.
17.  The applicant had never complained about the unsatisfactory detention conditions. The facility’s authorities had never caused any impediments in his communication with officials. All his correspondence had been duly dispatched to addressees.
18.  The Government did not comment on the report by the prosecution authorities of 18 February 2005.
II.  RELEVANT DOMESTIC LAW
A.  Detention of Suspects Act (Federal Law no. 103-FZ of 15 July 1995)
19.  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 (Section 23). Detainees should be given sufficient free food to keep them in good health in line with the standards established by the Government of the Russian Federation (Section 22).
B.  Rules on the prison regime in pre-trial detention centres (as approved by Ministry of Justice Decree no. 148 of 12 May 2000)
20.  Rule 42 provided that all suspects and accused persons in detention had to be given, among other things: a sleeping place, bedding, including one mattress, a pillow and one blanket; bed linen, including two sheets and a pillow case; a towel; tableware and cutlery, including a bowl, a mug and a spoon; and seasonal clothes (if the inmate had no clothes of his own).
21.  Rule 44 stated that cells in pre-trial detention centres were to be equipped, among other things, with a table and benches with a number of seating places corresponding to the number of inmates, sanitation facilities, tap water and lamps to provide day-time and night-time illumination.
22.  Rule 46 provided that prisoners were to be given three warm meals a day, in accordance with the norms laid down by the Government of Russia.
23.  Under Rule 47 inmates had the right to have a shower at least once a week for at least fifteen minutes. They were to receive fresh linen after taking their shower.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
24.  The applicant complained that conditions of his detention in remand prison IZ-22/1 in the town of Barnaul had been in breach of Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A.  The parties’ submissions
25.  According to the respondent Government, the conditions of the applicant’s detention in the detention facility in question were satisfactory and in compliance with applicable domestic norms and standards. In support of their position, they presented a number of documents dated February 2009.
26.  They also claimed that the applicant had failed to prove beyond reasonable doubt that his detention conditions had been in breach of Article 3 and that he had not supported his allegations by evidence.
27.  For the above reasons, the Government invited the Court to dismiss his complaint as manifestly ill-founded.
28.  The applicant maintained his complaint. He stated in particular that the level of overcrowding had been far more severe than submitted by the Government, that he had not had an individual sleeping place, that he had not received bedding and toiletries and that medical care had been inadequate.
B.  The Court’s assessment
1.  Admissibility
29.  The Court notes that the applicant’s complaint under Article 3 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.
2.  Merits
(a)  General principles
30.  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 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).
31.  As the Court has held on many occasions, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. 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. Furthermore, in considering whether a treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. 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 conclusively rule out a finding of violation of Article 3 (see Peers v. Greece, no. 28524/95, §§ 67-68, 74, ECHR 2001-III; Valašinas v. Lithuania, no. 44558/98, § 101, ECHR 2001-VIII).
32.  Measures depriving a person of his liberty may often involve an inevitable element of suffering or humiliation. Nevertheless, it is incumbent on the State to 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).
33.  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 Alver v. Estonia, no. 64812/01, 8 November 2005).
34.  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, 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, 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, 16 June 2005).
35.  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 v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. It should also be borne in mind that the 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 information capable of corroborating or refuting the applicant’s allegations. A failure on this 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 Ahmet Özkan and Others v. Turkey, no. 21689/93, § 426, 6 April 2004).
(b)  Application of the general principles to the present case
36.  The Court observes that the parties’ descriptions of the conditions of the applicant’s detention in Barnaul remand prison IZ-22/1 were different. The applicant submitted that the detention conditions had fallen short of standards compatible with Article 3. In particular, he claimed that he had been detained in severely overcrowded cells. The Government, by contrast, argued that during his detention the applicant had not suffered inhuman or degrading treatment which attained the minimum level of severity within the meaning of Article 3 of the Convention.
37.  The Court considers that there is no need to establish the veracity of each and every allegation, because it can find a violation of Article 3 on the basis of the facts presented to it by the applicant which the respondent Government failed to refute (see Grigoryevskikh v. Russia, no. 22/03, § 55, 9 April 2009). The focal point for the Court’s assessment in the present case is the living space afforded to the applicant in the prison cells.
38.  According to the Government, the applicant was detained in five cells measuring 12.8, 23.9, 21, 19.7 and 20.3 square metres with maximum two, four, four, three and four other inmates, respectively (see paragraph 12 above). The Court first notes that the Government did not indicate the exact number of the persons per cell detained together with the applicant. The reference to the notion of “maximum” does not appear sufficiently conclusive. It is further noted that in their submissions the national authorities relied on the certificates and photographs prepared by the prison administration in February 2009, that is more than three years after the applicant’s detention ended. No copies of original records specifying the allocation of inmates to the cells were submitted. The Court has earlier held that documents prepared by the authorities after a considerable period of time cannot be viewed as sufficiently reliable given the time that has passed (see, among other authorities, see Novinskiy v. Russia, no. 11982/02, § 105, 10 February 2009 and Buzhinayev v. Russia, no. 17679/03, § 30, 15 October 2009). The Court opines that these considerations hold true in the present case.
39.  A further subject of criticism is the information in respect of the provision of individual sleeping places presented by the Government. The Court observes that they did not specify the design capacity of the cells and a number of available beds. Nevertheless, referring to the certificate by the prison governor and the prison officers’ statements, the Government claimed that the applicant had been provided with an individual sleeping place. The Court finds that the officers’ statements appear to be based on their personal recollections and do not reflect objective data. As to the certificate, it is not supported by the original records. In these circumstances, the Court finds no justified reason to attach greater weight to these documents compared to the statements of the applicant. Besides, the Court takes cognisance of the findings made in February 2005 by the Prosecution Office of the Altay Region that the shortage of individual sleeping places in the facility in question was a known problem and that the applicant did not have an individual bed (see paragraph 11 above). The Court also notes that the respondent Government refrained from any comments on this document.
40.  In the light of the principles indicated in paragraph 35 above, the Court considers that the inconclusiveness of the documentation presented by the national authorities, combined with the lack of any original prison documentation, may give rise to the drawing of inferences as to the well‑foundedness of the applicant’s allegations regarding overcrowding and the lack of the individual sleeping places. The Court, therefore, is prepared to examine the merits of the complaint on the basis of the applicant’s submissions.
41.  According to the applicant, the number of detainees was greater than the number of available beds. The floor area per inmate in his cells was 1 square metre in average. Given the fact that each cell was equipped with bunks, a sink and a lavatory, which took up space, it appears that the actual living area per inmate was extremely small.
42.  The Court observes that it has frequently found a violation of Article 3 of the Convention on account of lack of personal space afforded to detainees (see Khudoyorov v. Russia, no. 6847/02, §§ 104 et seq., ECHR 2005-X (extracts); Labzov v. Russia, no. 62208/00, §§ 44 et seq., 16 June 2005; Novoselov v. Russia, no. 66460/01, §§ 41 et seq., 2 June 2005; Mayzit v. Russia, no. 63378/00, §§ 39 et seq., 20 January 2005; Kalashnikov v. Russia, no. 47095/99, §§ 97 et seq., ECHR 2002-VI; and Peers v. Greece, no. 28524/95, §§ 69 et seq., ECHR 2001-III). The Court has also established that the problems arising from the conditions of detention in Russian remand centres were of a structural nature (see Mamedova v. Russia, no. 7064/05, § 57, 1 June 2006, and Moiseyev v. Russia (dec.), no. 62936/00, 9 October 2008).
43.  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-intentioned, the detention of the applicant for one year in cramped conditions combined with the lack of the minimum comfort, which a normal night-time sleep gives, must have caused him such intense physical discomfort and mental suffering which the Court considers amounted to inhuman treatment within the meaning of Article 3 of the Convention.
44.  In view of this finding the Court sees no need to decide separately on the issue of the alleged breach of the Convention in respect of other deficiencies of detention conditions in Barnaul remand prison IZ-22/1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
45.  The Court has examined the other complaints submitted by the applicant.
46.  Having regard to all the material in its possession, the Court finds that those complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
47.  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.”
48.  On 17 April 2009 the Court invited the applicant to submit his claims for just satisfaction by 19 June 2009. He did not submit any such claims within the required time-limits.
49.  In such circumstances the Court would usually make no award. In the present case, however, it has found a violation of the applicant’s right not to be subjected to inhuman and degrading treatment. Having regard to the absolute nature of this right and to the fact that the applicant remained detained and unrepresented during the proceedings before the Court, it finds it appropriate to award him 5,000 euros (EUR) by way of non-pecuniary damage (compare Igor Ivanov v. Russia, no. 34000/02, §§ 49-50, 7 June 2007; Chember v. Russia, no. 7188/03, §§ 76-77, 3 July 2008; Nadrosov v. Russia, no. 9297/02, §§ 53-54, 31 July 2008; and Vladimir Fedorov v. Russia, no. 19223/04, § 86-87, 30 July 2009), plus any tax that may be chargeable.
50.  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
1.  Declares the complaint concerning the conditions of the applicant’s detention in Barnaul IZ-22/1 remand centre admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 3 of the Convention in respect of the applicant’s conditions of detention;

3.  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 5,000 (five thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable on that amount;
(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;
Done in English, and notified in writing on 10 February 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Søren Nielsen	Christos Rozakis
	Registrar	President