BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF POPANDOPULO v. RUSSIA
(Application
no. 4512/09)
JUDGMENT
STRASBOURG
10 May 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 Popandopulo v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
George
Nicolaou,
Mirjana Lazarova Trajkovska,
Julia
Laffranque, judges,
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 12 April 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4512/09) 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 Dimitrios Yevstafiyevich
Popandopulo (“the applicant”), on 9 December 2008.
- The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant complained, inter alia, of the abject conditions of
his detention, his ill-treatment in remand prison and the excessive
length of the proceedings against him.
- On 16 February 2009 the President of the Chamber
granted priority to the application under Rule 41 of the Rules of
Court.
- On
4 May 2009 the President of the First Section decided to give notice
of the above complaints to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1979 and is currently serving a term of
imprisonment in correctional colony IK-18, Yamalo-Nenetsk Autonomous
Region.
A. Applicant’s arrest and trial
- On
16 April 2005 the applicant was arrested on suspicion of murder.
- On
18 April 2005 the Vsevolozhsk Town Court of the Leningrad Region
decided to remand the applicant in custody.
- On
23 April 2005 the applicant absconded, and on 25 April 2005
he was apprehended by the police.
- On
29 May 2006 a deputy Prosecutor General of the Russian Federation
approved the bill of indictment against the applicant, and on 2 June
2006 the case was sent to the Leningrad Regional Court for trial.
- On
5 June 2006 the Leningrad Regional Court scheduled the preliminary
hearing for 15 June 2006. It was subsequently adjourned until 20 June
2006 following requests filed by the applicant and some of his
co defendants who had not received a copy of the decision of 5
June 2006.
- On
23 June 2006 the criminal case was returned to the public prosecutor
for rectification of the bill of indictment.
- On
27 September 2006 the Supreme Court of Russia quashed the
above-mentioned decision on appeal, and the case was resubmitted to
the Leningrad Regional Court.
- As
a result of the preliminary hearing held on 7 November 2006, on 8
November 2006 the Leningrad Regional Court fixed the opening date of
the trial for 6 December 2006. It was subsequently adjourned until
14 December 2006.
- On
14 December 2006 the applicant requested the court to let K.
represent him. However, on 21 December 2006 the court dismissed his
request in view of the fact that K. had no law degree.
- On
11 January 2007 the court began the examination of the evidence.
However, owing to the non-attendance of certain witnesses, the
applicant’s hospitalisation and the non-attendance of an
interpreter, the hearing was adjourned until an unspecified date.
- On
20 March 2007 the applicant requested leave for A. to
represent him, but his request was dismissed because A. was the
brother of one of the witnesses. Legal-aid counsel was appointed to
represent the applicant.
- Following
the submission of the pleadings the proceedings were adjourned until
9 July 2007 to permit the parties to prepare their comments as to the
substance and the wording of the questions to be put to the jury.
- On
6 November 2007 the Leningrad Regional Court, following a jury trial,
convicted the applicant of aggravated murder, theft, robbery and
escape and sentenced him to life imprisonment. When determining the
applicant’s sentence the court refused to take into account the
time that the applicant had allegedly overspent in prison while
serving his sentence in an unrelated criminal case.
- During
the trial the applicant requested the court to obtain the attendance
of a witness on his behalf. However, the court refused his request in
view of the fact that the testimony which the witness in question
could have given was irrelevant to the establishment of the factual
circumstances of the case by the jurors.
- However,
the trial court granted the prosecutor’s request to read out
the testimony given by one of the applicant’s co-defendants at
the stage of the pre-trial investigation.
- Later,
the presiding judge several times drew the jury’s attention to
the fact that the information provided during the trial concerning
acts other than those with which the applicant was charged, including
the statement by the applicant’s co-defendant, was of no
relevance to the applicant’s case and was not to be taken into
consideration when answering the questions put to the jury.
- The
applicant received a copy of the trial record with a one-month delay.
- On
15 May 2008 the Supreme Court of Russia upheld the judgment on
appeal. The applicant was represented by two lawyers of his own
choosing.
- On
5 July 2008 a copy of the appeal decision was served on the
applicant.
- On
25 February 2009 the Presidium of the Supreme Court of Russia quashed
the appeal decision of 15 May 2008 by way of supervisory review and
remitted the case for a new appeal hearing. The reason for the
quashing was the fact that the applicant had been denied the
opportunity to study the verdict.
- On
23 July 2009 the Supreme Court of Russia upheld the judgment of
6 November 2007 on appeal.
B. Conditions of the applicant’s detention in
remand prison IZ-47/1
- From 6 May 2005 to 7 September 2008 and from 7 June to
17 September 2009 the applicant was held in detention facility
IZ-47/1 in St Petersburg. He was held in cells nos. 29, 66, 74,
86, 360, 395 and 435 before his conviction and subsequently in cells
nos. 47, 122, 124, 129, 130, 132 and 135, designed for inmates
sentenced to life imprisonment. All the cells measured eight square
metres.
(a) The Government’s account
- Each cell was equipped with four sleeping places and
accommodated a maximum of three inmates at any given time. The
applicant had always had an individual bed and had been provided with
the appropriate bedding (a mattress, a pillow, a blanket, two sheets
and a pillowcase) and with tableware.
- The cell windows, which measured 1 x 1.1 metres, were
not covered with metal screens and therefore allowed sufficient
daylight to enter so that the inmates could read and write. The cells
were equipped with 60 to 75 watt filament light bulbs which were
on from 6 a.m. to 10 p.m. At night the cells were lit by 40-watt
security lights.
- All the cells were ventilated by means of a
ventilation shaft. Natural ventilation via the windows was also
available. The cells were equipped with a heating system providing a
suitable temperature which was in line with health and safety
standards. The average temperature during the summer was maintained
at 22 degrees Celsius and during winter at 18 degrees Celsius.
- The cells were equipped with toilets separated from
the main area by 1.5 metre-high partitions.
- The cells were equipped with drinking-water tanks. The
inmates were also allowed to use electric water heaters.
- The cells were also equipped with dining tables and
benches corresponding to the number of detainees, as well as shelves
and bedside tables for storage of personal items and foodstuffs.
- The
applicant could take a shower once a week for at least fifteen
minutes.
- He
was given three hot meals a day on the basis of the established legal
norms. The quality of the food was monitored on a regular basis by
the medical staff of the detention facility.
- The
applicant was allowed a daily one-hour outside walk in the facility’s
exercise yards, during which he could perform physical exercises. The
exercise yards, measuring from 24 to 35 square metres, were equipped
with benches, waste bins and sheds providing shelter from rain and
snow. Sports equipment was provided to the detainees at their
request.
- The
authorities ensured regular disinfection and pest control in the
detention facility.
- The
applicant was provided with comprehensive medical assistance. The
medical service of the facility was fully staffed with qualified
personnel, medicines and medical equipment. On his arrival at the
facility the applicant was examined by medical specialists; he made
no health related complaints and denied having tuberculosis,
viral hepatitis, venereal or surgical diseases. Subsequently, when he
underwent a forensic psychiatric examination, it was revealed that
the applicant had viral hepatitis C. Throughout his stay in
detention facility IZ-47/1 in St Petersburg the applicant did
not show clinical signs of the above mentioned disease and
therefore did not require any specialised treatment.
- In support of their observations the Government
provided several certificates issued by the governor of IZ-47/1 on 3
August and 11 August 2009, the results of a laboratory examination of
the microclimate of cells nos. 435, 360 and 122 (dated 10 July 2005,
6 June 2006 and 2 December 2007 respectively), statements by wardens
(not dated), the schedules for disinfection and pest control in the
facility’s premises and a number of certificates concerning the
food rations. The Government further provided copies of extracts from
the registration log showing the number of detainees on certain days
and in certain cells between May and December 2005, April and
December 2006, October and November 2007 and February and March 2008.
These extracts show that on 1 July and 8 July 2005 and on 2 October
2006, cell no. 435 accommodated four inmates; on 4 August 2005 cell
no. 66 accommodated four inmates; on 18 November and 15 December
2005 cell no. 395 accommodated four inmates; and on 5 October and
9 October 2007 and on 10 November 2007 cell no. 86 also
accommodated four inmates.
(b) The applicant’s account
- Cells nos. 29, 86, 360, 395 and 435 were equipped with
six sleeping places (two three-tier bunks). They housed from four to
six inmates at any given time. Cell no. 66 housed three inmates
including the applicant and cell no. 74 housed two inmates including
the applicant.
- After his conviction on 6 November 2007 the applicant
was held on his own in cells nos. 47, 122, 124, 129, 130, 132 and
135, which were reserved for inmates sentenced to life imprisonment
at first instance pending the examination of their case on appeal
(wing 2/1 with restricted access). Until the repairs in April-May
2008 these cells had not been equipped with bunk beds but with two
concrete benches in each cell.
- The windows in cells nos. 29, 66, 74, 86, 360, 395 and
435 were equipped with a double grid (one on the outside and one on
the inside). In cells nos. 122, 124, 129, 130, 132 and 135 the
windows were equipped with a triple grid (on the outside and the
inside of the cell, as well as inside the window pane). In addition
to the triple grid, densely spaced iron netting was fitted in front
of the windows, which allowed very little daylight to enter. In cell
no. 130 the window glass had been replaced with a layer of veneer,
which also prevented daylight from entering the cell. The window in
cell no. 132, in which the applicant had been held for two weeks
in February 2008, faced a wall, in addition to the above-mentioned
arrangements.
- Until April-May 2008 the artificial lighting in cells
nos. 122, 124, 129, 130, 132 and 135 consisted of one 60-watt
filament light bulb per cell. The bulb was covered by a dust-laden
lampshade above the entrance door.
- Air shafts existed in cells nos. 29, 66, 74, 86, 360,
395 and 435, but did not function as they were clogged with waste.
Cells nos. 122, 124, 129, 130, 132 and 135 did not have any air
shafts. The heating system did not function in any of the cells where
the applicant was detained until the repairs carried out in the
facility in April-May 2008. The applicant had to sleep with his
clothes on to keep warm in the wintertime.
- There
were no hot water taps or drinking-water tanks in the cells.
- The
lavatory was not separated from the living area and did not offer any
privacy.
- No
bedding was provided to the applicant until November 2007 (until then
he had used his own bedding). The bedding provided by the facility
was very worn, torn and dirty. Inmates had to dry their laundry
indoors, creating excessive humidity in the cells.
- The
shower was available once a week. At times it was only available once
every ten days, every two weeks or even every three weeks.
- The
food was of extremely poor quality and in scarce supply.
- None
of the cells was equipped with a dining table or benches (because of
the limited space). The inmates ate their food sitting on their bunks
holding the plate.
- The
cells swarmed with spiders, worms, flies, cockroaches, bedbugs and
mice. The applicant never witnessed any disinfection or pest control.
- Outside exercise, which was supposedly available every
day, was skipped on shower days and occasionally on other days for no
apparent reason. The exercise yards were too small and did not offer
sufficient room for any exercise (an average of five detainees being
taken outside simultaneously).
- The
inmates were not provided with adequate medical assistance.
- The
applicant’s complaints about the conditions of his detention
had availed nothing. Neither he nor the witnesses who could confirm
his allegations were ever questioned on the circumstances of which he
complained.
- In support of his position the applicant made
reference to the applications made to the European Court by B., T.
and Z., in which they also raised an issue concerning compliance of
the conditions of their detention in facility IZ-47/1 during the
relevant period with the requirements of Article 3 of the Convention.
- B., in particular, (see A.B. v. Russia, no.
1439/06, 14 October 2010) provided the following
account of the conditions of his detention in wing 2/1 of
facility IZ-47/1 of St Petersburg:
“36. On 29 October 2004 the applicant
was placed in solitary cell no. 129 in wing 2/1 with restricted
access. The wing was designed for the detention of inmates sentenced
to life imprisonment.
37. On 19 January 2005 the applicant was
transferred to solitary cell no. 123 in wing 2/1 with restricted
access. According to the applicant, the cell was the equivalent of a
disciplinary cell. ... The cell was in the basement where there was
no central heating, and the winter temperature there was about
7-10oC.
...
71. The applicant submitted written
statements by Mr A.M. and Mr N.M.
72. Mr A.M., who had been sentenced to life
imprisonment, was kept in cells nos. 120, 122, 126, 128 and 141
of wing 2/1 of the remand prison on various occasions between June
2004 and July 2007. In his submission, wing 2/1 was reserved for
inmates sentenced to life imprisonment at first instance pending the
examination of their cases on appeal. The conditions of detention in
all the cells were nearly identical. There were no chairs or desks in
the cells. The beds were made of concrete. The cells were in a
deplorable state. The humidity was high. There was no hot water or
heating. The temperature in the cells in winter was as low as
outside. There was no mandatory ventilation. Lavatory pans were not
separated from the rest of the cells. All inmates in wing 2/1 were
kept in solitary confinement. ...
73. Mr N.M. was sentenced to life
imprisonment. He was kept in cell no. 121 of wing 2/1 of the remand
prison. In his submission, all the cells in the wing were nearly
identical. There was no furniture in the cells. The temperature in
the cells in winter was as low as 3oC. There was no hot
water. The cells were very humid so that the walls were covered with
mould. The lavatory pans were not secluded. The food was of poor
quality. ...”
- Z.
provided the following account of the conditions in
wing 2/1 of facility IZ-47/1 in St Petersburg:
“From 30 March 2006 to 19 April 2007 and from 4
December 2007 to the present I have been detained in wing 2/1 of St
Petersburg IZ-47/1. From December 2007 I was held in cell no. 129,
and [the applicant] was held in cell no. 130. The conditions in those
cells were horrible. The walls were half-destroyed. The ceiling was
crumbling. The floor was made of concrete. The heating did not
function; the cells were very cold. There were no hot water taps.
Ventilation was non-existent. The cells were very dim since filament
bulbs over 60 watts were prohibited; the only lamp in the cell was
fitted with a 40-watt filament bulb ... The cells were overrun by
rodents (rats, mice).
...
In April 2008 I was transferred to cell no. 134, and
[the applicant] was moved to cell no. 135. The conditions in
those cells were identical to the conditions described above.
On 12 November 2008 I was transferred to cell no. 121,
and in June 2009 I learned that [the applicant] was being held in
cell no. 119. The floor and the ceiling in these cells are painted,
but they are crumbling; the concrete floor is covered with a piece of
linoleum. The remaining conditions are identical to those described
above. ...”
C. Ill-treatment in remand prison IZ-47/1
1. Events of 28 October 2007
(a) The applicant’s account
- According to the applicant, on 28 October 2007 in the
afternoon the door of the cell where he was being held (cell no. 74
at the time) burst open and two prison officers entered and ordered
the applicant and his inmates to leave the cell. The purpose of the
operation was to make the detainees abandon a collective hunger
strike. As soon as the detainees left the cell they were attacked by
the “Tayfun” special-purpose unit (отдел
специального
назначения
“Тайфун”
ГУИН).
The officers of the unit wore balaclavas and used rubber truncheons
to hit the detainees. The applicant saw that inmates from other cells
were also being beaten up. As a result of the blows he received the
applicant lost consciousness and regained it only when locked back in
the cell.
- On
the following day the applicant was placed in the punishment cell for
ten days for alleged disobedience. Since he could not walk after the
beatings he was helped by two wardens.
(b) The Government’s account
- According to the Government, a rubber truncheon was
used against the applicant for the purpose of repelling an attack by
him on a prison officer. They submitted a report on the use of a
rubber truncheon against the applicant dated 28 October 2007,
accompanied by a medical certificate drawn up following the
examination of the applicant after the incident. The certificate
recorded multiple abrasions in the area of the applicant’s back
and a haematoma in the region of his right knee.
(c) Investigation into the events of 28
October 2007
- On
1 November and 2 November 2007 the applicant complained about the
beatings to the public prosecutor’s office.
- In its reply dated 14 December 2007 the St Petersburg
public prosecutor’s office informed the applicant as follows:
“In the course of the inquiry [conducted into the
applicant’s allegations of ill treatment] it was
established that on 28 October 2007 the prison officers of SIZO-1 had
been carrying out a technical inspection of cell no. 74 where [the
applicant] was held at the material time. In the course of the
inspection [the applicant] refused to comply with the lawful orders
given by the prison officers. In order to put a stop to [the
applicant’s] unlawful actions physical force and special means
had been used against him in accordance with section 45 of the
Federal Law on the detention of persons suspected of and charged with
criminal offences.
...
Taking into account the foregoing, at the present time
there are no grounds for the prosecutor’s office to intervene.”
- Further, on 27 August 2008 an investigator from the
Kalininskiy District investigating department of the St Petersburg
public prosecutor’s office refused to institute criminal
proceedings concerning the use of special means against the
applicant. The decision read as follows:
“In the course of the inquiry it was established
that on 28 October 2007 on the territory of IZ-47/1 a general search
was conducted by prison officers of [the above facility] aimed at
finding and seizing prohibited items. During the search certain
detainees ... broke the rules by failing to abide by the lawful
orders of the [prison officers] and insulting [them], as a result of
which physical force and special means were used against them.
Therefore, physical force and special means were
lawfully applied to [the applicant] since he had not abided by the
lawful orders of the prison officers, a fact confirmed by the medical
certificate, the report on the use of a rubber truncheon and the
submissions by [four officers involved in the incident] ...”
- On 27 July 2009 the acting head of the Kalininskiy
District investigating department annulled the above decision,
finding as follows:
“In the course of the study of the material in the
case file it was established that the inquiry had been incomplete.
Therefore the decision [of 27 August 2008] was made
prematurely and must be annulled.
In the course of the additional inquiry it is necessary
to question [the applicant], to obtain and examine the [applicant’s]
medical documents, to question the head of the “Tayfun”
special-purpose unit, and to take other measures required in order to
reach a decision.”
- The applicant has yet to be informed of the outcome of
the additional inquiry. No information was provided by the Government
in that regard.
2. Events of 14 February 2008
(a) The applicant’s account
- According
to the applicant, he was beaten up by prison officers because of his
complaints about the conditions of his detention.
(b) The Government’s account
- According
to the Government, physical force consisting in bending the
applicant’s arm behind his back (загиб
руки
за спину)
was applied to the applicant for the purpose of repelling an attack
by him on a prison officer. They submitted a report on the use of
physical force against the applicant dated 14 February 2008,
accompanied by a medical certificate concerning the examination of
the applicant after the incident. The certificate indicated that no
visible injuries had been detected on the applicant’s body. The
Government further submitted statements by three prison officers,
according to which in the course of the search conducted in cell no.
130, where the applicant was detained at the material time, the
latter had behaved defiantly, had threatened the prison officers, had
not responded to warnings and had prevented the officers from
carrying out the search. After a mobile phone had been found in the
cell the applicant had pounced on one of the prison officers and the
latter had had to use physical force against him. The applicant had
displayed active physical resistance and had tried to administer
blows and kicks, following which he had been forced to the floor.
Since he continued to resist, a painful hold (болевой
прием
самбо)
had been applied to him and he had been put back in the cell.
(c) Investigation into the events of 14
February 2008
- The
applicant complained to the public prosecutor’s office about
the beatings.
- In its reply dated 25 April 2008 the St Petersburg
public prosecutor’s office informed the applicant as follows:
“On 14 February 2008 prison officers of SIZO-1
conducted a search in cell no. 130 where you were detained at
the material time. During the search you displayed resistance to the
lawful orders of the prison officers. In order to put a stop to your
unlawful actions physical force was applied in accordance with
section 45 of the Federal Law on the detention of persons suspected
of and charged with criminal offences.”
- Neither
party provided any other documents pertaining to the inquiry into the
above incident.
II. RELEVANT DOMESTIC LAW
A. Conditions of detention
- Section
22 of the Federal Law of 15 July 1995 on the detention of
persons suspected of and charged with criminal offences (the
Detention of Suspects Act) provides that detainees should be given
free food sufficient to maintain them in good health in accordance
with the standards established by the Government of the Russian
Federation. Section 23 provides that detainees should be kept in
conditions which satisfy certain sanitary and hygienic requirements.
They should be provided with an individual sleeping place and given
bedding, tableware and toiletries. Each inmate should have no less
than four square metres of personal space in his or her cell.
B. Use of force and special means against detainees
- Section
44 of the Detention of Suspects Act provides that physical force,
special means or weapons may be used against detainees for the
purpose of preventing an offence and overcoming resistance to the
lawful orders of officials in cases where non-violent means are not
sufficient to put a stop to the offence or make a detainee comply
with a lawful order.
- Section 45 of the Detention of Suspects Act provides
that special means (including rubber truncheons) may be used against
detainees in the following cases:
(a) to
put a stop to assaults on officials and other persons;
(b) to
quell mass disorder or collective breaches of public order;
(c) to
prevent unlawful actions of detainees resisting lawful orders;
(d) to
free hostages, captured buildings, premises, structures or transport
facilities;
(e) to
prevent attempts to escape from custody;
(f) to
prevent attempts to cause harm to others; and
(g) to
prevent attempts to cause self-harm.
C. Criminal-law remedies in respect of ill-treatment
1. Applicable criminal offences
- Abuse of office associated with the use of violence or
entailing serious consequences carries a punishment of up to ten
years’ imprisonment (Article 286 § 3 of the Criminal
Code).
2. Investigation of criminal offences
- The Code of Criminal Procedure of the Russian
Federation (Law no. 174-FZ of 18 December 2001, in force from 1
July 2002) states that a criminal investigation may be initiated by
an investigator or prosecutor on a complaint by an individual
(Articles 140 and 146). Within three days of receipt of such a
complaint, the investigator or prosecutor must carry out a
preliminary inquiry and make one of the following decisions: (1) to
open criminal proceedings if there are reasons to believe that a
crime has been committed; (2) to decline to open criminal proceedings
if the inquiry reveals that there are no grounds to initiate a
criminal investigation; or (3) to refer the complaint to the
competent investigative authority. The complainant must be notified
of any decision taken. The decision not to open criminal proceedings
is amenable to appeal to a higher prosecutor or a court of general
jurisdiction (Articles 144, 145 and 148).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION ON ACCOUNT OF THE CONDITIONS OF THE APPLICANT’S
DETENTION
- The
applicant complained of the allegedly appalling conditions of his
detention in St Petersburg pre-trial detention facility IZ-47/1.
He relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
He
also claimed that he did not have at his disposal an effective remedy
in respect of the violation of the guarantee against ill-treatment
provided by Article 13 of the Convention:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority ...”
A. Submissions by the parties
- Relying
on their description of facility IZ-47/1 in St Petersburg, the
Government asserted that the conditions of the applicant’s
detention had complied with the requirements of Article 3 of the
Convention. In so far as the applicant complained of the absence of
an effective domestic remedy in respect of the allegedly inhuman and
degrading conditions of his detention, the Government submitted that
it had been open to the applicant to lodge a civil action, but that
he had not availed himself of that possibility. The above-mentioned
remedy had proved to be effective in the cases of Mr D., Mr R. and Mr
S., cited by the Government previously in the case of Kokoshkina
v. Russia (no. 2052/08, § 49, 28 May 2009). All three men
had been awarded compensation for non-pecuniary damage resulting from
the unsatisfactory conditions of their detention (infection with a
contagious skin disease, failure to provide food and, in the third
case, a more general formula relating to the inadequate conditions of
detention). At no point did the Government make available to the
Court copies of the judgments cited by them in Kokoshkina.
- The
applicant maintained his complaints.
B. The Court’s assessment
1. Admissibility
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention and
that they are not inadmissible on any other grounds. They must
therefore be declared admissible.
2. Merits
(a) Article 3 of the Convention
- Article
3, as the Court has observed on many occasions, enshrines one of the
fundamental values of democratic society. The Convention prohibits in
absolute terms torture or inhuman or degrading treatment or
punishment, irrespective of the circumstances or the victim’s
behaviour (see Labita v. Italy [GC], no. 26772/95, § 119,
ECHR 2000-IV). The Court has consistently stressed that, in order for
a punishment or treatment associated with it to be “inhuman”
or “degrading”, 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. Although measures depriving a person of his liberty may
often involve such an element, in accordance with Article 3 of the
Convention the State must ensure that a person is detained under
conditions which are compatible with respect for his human dignity
and that the manner and method of the execution of the measure do not
subject him to distress or hardship exceeding the unavoidable level
of suffering inherent in detention (see Kudła v. Poland
[GC], no. 30210/96, §§ 92-94, ECHR 2000-XI).
- The
Court further reiterates that in certain cases the lack of personal
space afforded to detainees in Russian remand prisons was so extreme
as to justify, in its own right, a finding of a violation of Article
3 of the Convention (see, for example, Benediktov v. Russia,
no. 106/02, §§ 33 et seq., 10 May 2007; 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; and Kalashnikov v. Russia,
no. 47095/99, §§ 97 et seq., ECHR 2002-VI). By contrast, in
other cases where the overcrowding was not so severe as to raise in
itself an issue under Article 3 of the Convention, the Court noted
other aspects of the physical conditions of detention as being
relevant for its assessment of compliance with that provision. Such
elements included, in particular, the opportunity to use the toilet
in private, the availability of ventilation, access to natural light
or air, the adequacy of the heating arrangements and compliance with
basic sanitary requirements. Thus, even in cases where a larger
prison cell was in issue – measuring between three and four
square metres per inmate – the Court found a violation of
Article 3 since the space factor was coupled with an established lack
of ventilation and lighting (see Aleksandr Makarov v. Russia,
no. 15217/07, § 98, 12 March 2009; Vlasov v. Russia,
no. 78146/01, § 84, 12 June 2008; Babushkin v. Russia,
no. 67253/01, § 44, 18 October 2007; Trepashkin v. Russia,
no. 36898/03, § 94, 19 July 2007; and Peers v. Greece,
no. 28524/95, §§ 70-72, ECHR 2001-III).
- Turning
to the circumstances of the present case, the Court observes that the
applicant was held in facility IZ-47/1 in St Petersburg
uninterruptedly from 6 May 2005 to 7 September 2008 and from 7 June
to 17 September 2009. It further observes that the conditions of the
applicant’s detention in the above facility prior to his
conviction by the first-instance court on 6 November 2007 and
thereafter differed substantially. While the main characteristic of
the applicant’s detention before 6 November 2007 was the
alleged overcrowding of the cells, after 6 November 2007 the
applicant was detained in solitary confinement and complained
essentially about other aspects of the physical conditions of his
detention. In view of the foregoing, the Court considers it
appropriate to examine separately the conditions of the applicant’s
detention from 6 May 2005 to 6 November 2007 and from 6 November 2007
onwards.
(i) Conditions of the applicant’s
detention from 6 May 2005 to 6 November 2007
- The Court notes that the parties disputed most aspects
of the conditions of the applicant’s detention in the period
under consideration. However, there is no need for the Court to
establish the veracity of each and every allegation, as it has
sufficient documentary evidence in its possession to confirm the
applicant’s allegations of severe overcrowding in facility
IZ 47/1. This in itself is sufficient to conclude that Article 3
of the Convention has been breached.
- The
Court notes the Government’s argument to the effect that the
communal cells of facility IZ-47/1, each measuring eight square
metres, accommodated a maximum of three detainees at any given time.
However, contrary to the Government’s assertion and the
certificate issued by the governor of IZ-47/1, the extracts from the
registration log provided by the Government, however selective they
may be, show that on certain days between 2005 and 2007, cells nos.
66, 86, 395 and 435 each accommodated four inmates (see paragraph 40
above).
- The
Court is concerned at such discrepancies between the statements of
the domestic authorities and the original prison documentation. It is
therefore inclined to accept the applicant’s position,
according to which the communal cells in facility IZ-47/1
accommodated, with some minor exceptions (see paragraph 41 above),
from four to six detainees at any given time, thereby affording each
detainee at all times between 1.3 and 2 square metres of personal
space. Furthermore, when the sleeping, sanitary and dining
arrangements in the cells are taken into account it appears that the
inmates were left with virtually no personal space at all.
- The
Court further notes that it has previously on a number of occasions
examined the conditions of detention in detention facility IZ-47/1 in
St Petersburg and found them to be incompatible with the requirements
of Article 3 of the Convention on account of severe overcrowding (see
Goroshchenya v. Russia, no. 38711/03, § 64-73, 22 April
2010; Lutokhin v. Russia, no. 12008/03, §§ 48-59, 8
April 2010; Seleznev v. Russia, no. 15591/03, §§
38-48, 26 June 2008; Gusev v. Russia, no. 67542/01, §§ 51-61,
15 May 2008; and Andrey Frolov v. Russia, no. 205/02, §§
43-51, 29 March 2007).
- Having
regard to its case-law on the subject and the material in its
possession, the Court notes that the Government have not provided any
evidence or made any submissions capable of persuading it to reach a
different conclusion in the present case.
- There
has therefore been a violation of Article 3 of the Convention on
account of the conditions of the applicant’s detention in
facility IZ-47/1 in St Petersburg from 6 May 2005 to 6 November 2007,
which the Court considers to amount to inhuman and degrading
treatment within the meaning of Article 3 of the Convention.
(ii) Conditions of the applicant’s
detention from 6 November 2007 to 7September 2008 and from 7 June to
17 September 2009
- The
Court observes that in the periods under consideration the applicant
was held alone in cells measuring 8 sq. m. As the size of the cells
by itself does not raise an issue under the Convention, the Court
will have to determine whether the cumulative effect of other aspects
of the physical conditions of the applicant’s detention was
such as to amount to inhuman and/ or degrading treatment in breach of
Article 3 of the Convention.
- The Court observes that the parties disputed most
other aspects of the conditions of the applicant’s detention.
In this regard the Court reiterates that in certain instances the
respondent Government alone have access to information capable of
firmly corroborating or refuting allegations under Article 3 of the
Convention, and that a failure on a Government’s part to submit
such information without a satisfactory explanation may give rise to
the drawing of inferences as to the well-founded nature of the
applicant’s allegations (see Khudoyorov, cited above, §
113, and Ahmet Özkan and Others v. Turkey, no. 21689/93,
§ 426, 6 April 2004). The Court will therefore focus its
analysis on the facts presented to it which the respondent Government
either admitted or failed to refute, without establishing the
veracity of each and every allegation.
- First
of all, in so far as the sleeping arrangements in the cells are
concerned, the applicant claimed that until the renovations carried
out in April-May 2008 the cells in which he was detained had not been
equipped with bunk beds, but with two concrete benches (see paragraph
42 above). This fact was confirmed by written statements of A.M., a
cellmate of B. to whose case before the Court the applicant referred
(see paragraphs 56-57 above). The Court notes that the Government
made no comments on this allegation.
- Secondly,
as regards the natural lighting in the cells, the applicant contended
that the windows in the cells (measuring 1 x 1.1 metre, one per cell)
were protected by three layers of horizontal and vertical lattices
(fitted on the inner and outer sides of the cells and inside the
window panes) and, above that, by densely spaced iron netting on the
outside. In one of the cells the broken window was replaced with
veneer and in another cell the window, also protected in the above
fashion, was facing a wall (see paragraph 43 above). The Government
did not comment on these points either. As far as the artificial
lighting is concerned, according to both parties’ submissions,
until the renovations in April-May 2008 the cells were lit during the
day by a 60-watt filament bulb and subsequently by two 60 watt
filament bulbs (see paragraphs 30 and 44 above).
- Thirdly,
as to the availability of outside exercise, the applicant alleged
that outside exercise had been limited to one hour a day and that on
some days it had not been available at all (see paragraph 53 above).
The Government did not comment on whether in fact the applicant had
been deprived of outside exercise on shower days and on other
occasions.
- Having
regard to the foregoing, the Court observes that from 6 November
2007 until at least April 2008 the applicant had to spend a
considerable part of each day practically confined to his cell with
inadequate sleeping arrangement, very limited access to daylight,
extremely poor artificial lighting and a lack of regular outside
exercise. Taking into account the cumulative effect of those factors,
the Court concludes that the conditions of the applicant’s
detention between 6 November 2007 and April 2008 amounted to inhuman
and degrading treatment. As regards the subsequent periods from April
2008 to 7 September 2008 and from 7 June to 17 September 2009, the
information provided by the parties indicates that the concrete
benches were replaced with bunk beds and that additional measures
were taken regarding the artificial lighting in the cells. For these
reasons, in the Court’s opinion, the cumulative effect of the
conditions of the applicant’s detention in the above two
periods was not so severe as to fall within the ambit of Article 3 of
the Convention.
- There
has therefore been a violation of Article 3 of the Convention on
account of the conditions of the applicant’s detention in
facility IZ-47/1 in St Petersburg from 6 November 2007 to April 2008,
and no violation on account of the conditions of his detention in the
above-mentioned facility from April 2008 to 7 September 2008 and from
7 June to 17 September 2009.
(b) Article 13 of the Convention
- The
Court points out 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 scope
of the obligation under Article 13 varies depending on the nature of
the applicant’s complaint under the Convention. Nevertheless,
the remedy required by Article 13 must be effective in practice as
well as in law.
- Turning
to the facts of the present case, the Court notes that, according to
the Government, the applicant had available to him an adequate and
effective remedy in respect of the conditions of his detention, in
the form of a civil action against the detention facility. The Court
has previously addressed that argument in the context of the
admissibility of an Article 3 complaint on account of the conditions
of detention in the case of Aleksandr Makarov, cited above,
and dismissed it as follows:
“87. [...] the Court notes that the
Government, without providing any further explanation, suggested that
an action for damages lodged with a court could have been an
effective remedy in the applicant’s case for his complaints
about the poor conditions of his detention. The Government did not
make any reference to any legal norm on the possibility of lodging an
action seeking damages for treatment already suffered as a result of
the conditions of detention, or on the possibility of such an action
being preventive of further sufferings. At the same time, without
providing copies of respective court judgments, the Government
supplied three examples from domestic practice showing that by using
the means in question it was possible for the applicant to obtain
compensation for damage. In this connection, the Court observes that
in the absence of documents supporting the Government’s
assertion, it is unable to identify the relevance of the impugned
judgments to the issue of the effectiveness of an action for damages
as a remedy in the circumstances of the present case. Furthermore, in
the Court’s view, the three cases cited by the Government do
not suffice to show the existence of settled domestic practice that
would prove the effectiveness of the remedy (see, for a similar
approach, Horvat, cited above, § 44).
88. In any event, the Court does not lose
sight of the Government’s argument that every aspect of the
conditions of the applicant’s detention, including the
lighting, food, medical assistance, sanitary conditions, etc.,
complied with applicable legal regulations. The Court finds it
questionable whether, in a situation where domestic legal norms
prescribed such conditions of the applicant’s detention, the
applicant would have been able to argue his case before a court or
even state the cause of action to pass the admissibility stage (see
Guliyev v. Russia, no. 24650/02, § 55, 19 June 2008, and
Valašinas v. Lithuania (dec.), no. 44558/98, 4 March
2000). In other words, the Court has strong doubts that the applicant
would have had a realistic opportunity to apply effectively to a
court.
89. This conclusion is not altered by the
fact that on one occasion the applicant was able to challenge
successfully the facility administration’s decision not to
permit him to have a refrigerator in the cell. To the contrary, the
Court observes that the applicant’s ability to obtain a
favourable court decision in that particular case supports the above
finding that a civil action for damages did not offer the applicant
sufficient prospects of success. As it follows from the Government’s
submissions, the domestic court annulled the facility
administration’s refusal on the ground that it did not comply
with the legal norms. At the same time in the two other cases in
which the applicant attempted to challenge the facility
administration’s actions, the courts, in dismissing the
applicant’s complaints, explicitly relied on the fact that the
impugned limitations on the applicant’s rights were established
legally (see paragraph 72 above). The approach adopted by the Russian
courts seems unduly formalistic. It allows a large number of cases,
such as the applicant’s, where the conditions of detention
result from legal regulations, to be dismissed. Thus, as a result of
that stance of the courts, an action to a court offers no prospect of
success and could be considered theoretical and illusory rather than
adequate and effective in the sense of Article 35 § 1 of the
Convention.”
- The
Court further reiterates that in the past it has found a violation of
Article 13 on account of the absence of an effective remedy for
inhuman and degrading conditions of detention in many Russian cases,
finding as follows (see, for example, Benediktov, cited above,
§ 29, and Vlasov, cited above, § 87):
“[T]he Government did not demonstrate what redress
could have been afforded to the applicant by a prosecutor, a court or
other State agencies, taking into account that the problems arising
from the conditions of the applicant’s detention were
apparently of a structural nature and did not only concern the
applicant’s personal situation (compare Moiseyev v. Russia
(dec.), no. 62936/00, 9 December 2004; Kalashnikov v. Russia
(dec.), no. 47095/99, 18 September 2001; and, most recently,
Mamedova v. Russia, no. 7064/05, § 57, 1 June 2006). The
Government have failed to submit evidence as to the existence of any
domestic remedy by which the applicant could have complained about
the general conditions of his detention, in particular with regard to
the structural problem of overcrowding in Russian detention
facilities, or that the remedies available to him were effective,
that is to say that they could have prevented violations from
occurring or continuing, or that they could have afforded the
applicant appropriate redress (see, to the same effect, Melnik v.
Ukraine, no. 72286/01, §§ 70-71, 28 March 2006;
Dvoynykh v. Ukraine, no. 72277/01, § 72, 12 October
2006; and Ostrovar v. Moldova, no. 35207/03, § 112, 13
September 2005).”
- These
findings apply a fortiori to the present case. Although the
Government pointed to a domestic remedy by which, in their opinion,
the applicant could have obtained redress for the inhuman and
degrading conditions of his detention, they did not put forward any
valid argument as to its effectiveness. This could have consisted in
reference to a domestic legal framework enabling persons subjected to
inhuman and degrading conditions of detention to seek redress of both
a compensatory and a preventive nature, or in a credible
demonstration of a settled domestic practice that would prove the
effectiveness of the remedy in question.
- The
Court concludes, therefore, that there has been a violation of
Article 13 of the Convention on account of the lack of an effective
and accessible remedy under domestic law enabling the applicant to
complain about the general conditions of his detention in IZ-47/1 in
St Petersburg.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON
ACCOUNT OF THE APPLICANT’S ILL-TREATMENT
- The
applicant complained under Articles 3 and 13 of the Convention that
he had been beaten up on 28 October 2007 and 14 February 2008 while
in State custody and that there had been no effective investigation
into these incidents. The Court will examine the applicant’s
complaints from the standpoint of the State’s negative and
positive obligations flowing from Article 3, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Submissions by the parties
- The
Government argued that the use of physical force and special means
against the applicant on 28 October 2007 and 14 February 2008 had
been made necessary by the applicant’s own conduct and had been
lawful in domestic terms. They further argued that the treatment of
which the applicant complained had not attained the threshold of
inhuman or degrading treatment. The Government made no comment on the
issue of the compliance of the investigation in the present case with
the requirements of Article 3 of the Convention.
- The
applicant maintained his complaint.
B. The Court’s assessment
1. Admissibility
- In so far as the complaint concerns the incident of
14 February 2008 the Court notes, and it is uncontested by the
parties, that the prison officers had recourse to an immobilisation
technique in dealing with the applicant (see paragraph 66 above). At
the same time, it was not established beyond reasonable doubt that
the applicant had been beaten up (see, by contrast, Dedovskiy
and Others v. Russia, no. 7178/03, §§
76-79, 15 May 2008). The applicant did not claim to have sustained
any injuries as a result of the incident, and no medical evidence to
the contrary was furnished. There is also nothing in the case file to
show that the use of force against the applicant exceeded the minimum
level of severity required in order to raise an issue under Article 3
of the Convention, or that it was disproportionate to the applicant’s
own conduct. In view of the above considerations, the Court finds
that the use of force against the applicant on 14 February 2008 was
the result of legitimate actions taken by the prison officers to put
a stop to the applicant’s unruly behaviour and did not reach
the threshold required in order to constitute inhuman or degrading
treatment. It follows that this part of the complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 (a) and 4 of the Convention.
- In
so far as the applicant’s complaint relates to the episode on
28 October 2007, 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.
2. Merits
(a) Alleged ill-treatment
- The
Court reiterates that allegations of ill-treatment must be supported
by appropriate evidence. In assessing evidence, the Court has
generally applied the standard of proof “beyond reasonable
doubt”. However, such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact (see Salman v. Turkey [GC],
no. 21986/93, § 100, ECHR 2000-VII).
- It
is not in dispute between the parties that on 28 October 2007 prison
officers of facility IZ-47/1 in St Petersburg carried out a general
search/technical inspection of the facility’s cells, including
cell no. 74 where the applicant was held at the material time. It is
likewise uncontested that the officers used rubber truncheon against
the applicant. The Court therefore finds it established “beyond
reasonable doubt” that the applicant was hit with a rubber
truncheon by prison officers of facility IZ-47/1. It will accordingly
proceed to an assessment of the severity of his ill-treatment.
- Although
the Government acknowledged that a rubber truncheon had been used,
they insisted that it had been used lawfully, in response to the
applicants’ unruly conduct.
- The
Court is mindful of the potential for violence that exists in
detention facilities and of the fact that disobedience by detainees
may quickly degenerate into a riot requiring the intervention of the
security forces (see Dedovskiy and Others, cited above, §
81, with further reference). Nevertheless, recourse to physical force
which has not been made strictly necessary by the detainee’s
own conduct diminishes human dignity and is in principle an
infringement of the right set forth in Article 3 of the Convention
(see Sharomov v. Russia, no. 8927/02, § 27, 15 January
2009; Dedovskiy and Others, cited above, § 73; Sheydayev
v. Russia, no. 65859/01, § 59, 7 December 2006; and
Ribitsch v. Austria, 4 December 1995, § 38, Series A no.
336).
- In
the present case the Court is not convinced that the use of a rubber
truncheon against the applicant was strictly necessary. The Court
notes that the Government gave as the reason the need to put a stop
to an attack by the applicant on the facility’s staff (see
paragraph 61 above). At the same time, the documents submitted in
support of the Government’s position refer only vaguely to the
applicant’s failure to comply with lawful orders, without
elaborating on the nature of the orders or the form of the
applicant’s defiance which allegedly prompted the use of a
rubber truncheon (see paragraphs 63-64 above). It appears therefore
that the domestic authorities failed to properly account for the
necessity of causing the applicant multiple injuries (abrasions and a
haematoma) and to demonstrate convincingly that the use of force had
not been excessive. The Court is particularly concerned at the use of
a rubber truncheon against the applicant in view of the involvement
of a special-purpose unit (see paragraph 59 above), which it finds
established in the light of the following considerations. The Court
observes, first of all, that the Government did not contest the
applicant’s allegations as to the involvement of such a unit in
the events in question. Furthermore, according to the material in the
case file, the domestic court quashed the prosecutor’s decision
refusing the institution of criminal proceedings concerning the use
of special means against the applicant as premature and incomplete,
and indicated, among other things, that it would be necessary in the
course of the additional inquiry to question the head of the
special-purpose unit in order to clarify the issue of the unit’s
involvement (see paragraph 65 above). The Court further observes that
the domestic authorities never did this (see paragraph 66 above).
- In
such circumstances it appears that the use of force against the
applicant was retaliatory in nature and aimed at debasing the
applicant and forcing him into submission. The treatment to which the
applicant was subjected must have caused him mental and physical
suffering, even though it did not apparently result in any long-term
damage to his health.
- There
has therefore been a violation of Article 3 of the Convention, in
that on 28 October 2007 the Russian authorities subjected the
applicant to inhuman and degrading treatment in breach of that
provision.
(b) Alleged inadequacy of the
investigation
- The Court reiterates that where an individual raises
an arguable claim that he has been seriously ill-treated in breach of
Article 3, that provision, read in conjunction with the State’s
general duty under Article 1 of the Convention to “secure to
everyone within their jurisdiction the rights and freedoms defined in
... [the] Convention”, requires by implication that there
should be an effective official investigation.
- An
obligation to investigate “is not an obligation of result, but
of means”: not every investigation should necessarily be
successful or come to a conclusion which coincides with the
claimant’s account of events; however, it should in principle
be capable of leading to the establishment of the facts of the case
and, if the allegations prove to be true, to the identification and
punishment of those responsible (see Paul and Audrey Edwards v.
the United Kingdom, no. 46477/99, § 71, ECHR 2002-II, and
Mahmut Kaya v. Turkey, no. 22535/93, § 124, ECHR
2000-III). Otherwise, the general legal prohibition of torture and
inhuman and degrading treatment and punishment would, despite its
fundamental importance, be ineffective in practice and it would be
possible in some cases for agents of the State to abuse the rights of
those within their control with virtual impunity (see Jasar v.
“the former Yugoslav Republic of Macedonia”,
no. 69908/01, § 55, 15 February 2007; Matko v.
Slovenia, no. 43393/98, § 84, 2 November 2006; Assenov
and Others v. Bulgaria, 28 October 1998, § 102,
Reports 1998-VIII; and Labita, cited above, §
131).
- The minimum standards as to effectiveness defined by
the Court’s case-law also include the requirements that the
investigation must be independent, impartial and subject to public
scrutiny, and that the competent authorities must act with exemplary
diligence and promptness (see Isayeva and Others v. Russia,
nos. 57947/00, 57948/00 and 57949/00, §§ 208-13,
24 February 2005, and Menesheva v. Russia, no. 59261/00,
§ 67, ECHR 2006-III).
- It
has not been contested by the Government that on 1 and 2 November
2007 the applicant complained to the public prosecutor’s office
about the alleged beatings of 28 October 2007. The matter was
hence duly brought before the competent authorities at a time when
they could reasonably have been expected to investigate the
circumstances in question. The applicant’s allegations were
corroborated by reference to the results of his medical examination
after the incident, which recorded multiple abrasions and a haematoma
on the applicant’s body (see paragraph 61 above). The
applicant’s claim was therefore shown to be “arguable”
and the domestic authorities were placed under an obligation to carry
out “a thorough and effective investigation capable of leading
to the identification and punishment of those responsible”
(see, for similar reasoning, Generalov v. Russia, no.
24325/03, § 139, 9 July 2009, with further references).
- The
Court notes that on 14 December 2007 the public prosecutor’s
office, having conducted an inquiry, found that on 28 October 2007
during the technical inspection of the cell the applicant had failed
to abide by the lawful orders of the prison officers and that the
latter had been obliged to have recourse to physical force and
special means (see paragraph 63 above). The decision did not
elaborate on the measures taken in the course of the inquiry, such
as, for example, the questioning of those involved in the incident
and of possible witnesses and the examination of the medical
evidence. It did not address the applicant’s allegation
concerning the involvement of a special-purpose unit in the incident
and did not specify in what way the applicant had failed to comply
with the orders of the prison officers. Neither did the decision
contain any assessment as to whether the interference with the
applicant’s physical integrity had been proportionate to his
own conduct.
- The
Court further notes that over nine months after the alleged beatings,
on 27 August 2008, the public prosecutor’s office decided not
to institute criminal proceedings against the prison officers.
Relying on the results of the applicant’s medical examination,
the report on the use of a rubber truncheon and the statements made
by four officers involved in the incident, the public prosecutor’s
office arrived at the conclusion that physical force and a rubber
truncheon had been lawfully used against the applicant in the course
of the search carried out in his cell, owing to his failure to comply
with the lawful orders of the prison officers (see paragraph 64
above). Almost a year later, on 27 July 2009, the decision in
question was cancelled because the inquiry had been found to be
incomplete. It was indicated that in the course of the additional
inquiry it was necessary, among other things, to question the
applicant, to obtain and examine his medical documents and to
question the head of the “Tayfun” special purpose
unit which was allegedly involved in the incident of 28 October
2007 (see paragraph 65 above). As the applicant was not informed as
to the subsequent course of the inquiry, it was for the Government to
submit such information. However, they did not do so and provided no
satisfactory explanation for the above omission.
- Regard being had to the foregoing, the Court
accordingly has no basis on which to conclude that the inquiries were
either prompt or thorough. It therefore considers that in the instant
case the authorities failed to carry out an effective investigation
in accordance with the requirements of Article 3 of the Convention.
- There
has therefore been a violation of Article 3 of the Convention under
its procedural limb.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON
ACCOUNT OF THE LENGTH OF THE PROCEEDINGS
- The
applicant complained that the length of the criminal proceedings
against him had been incompatible with the “reasonable time”
requirement of Article 6 § 1 of the Convention, which provides,
in its relevant part, as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
A. Submissions by the parties
- The Government submitted that the overall duration of
the proceedings against the applicant had not exceeded the reasonable
time requirement under Article 6 § 1 of the Convention. In the
course of the trial the court had dealt with a considerable number of
requests filed by the participants to the proceedings; it had
examined extensive material from the case file (four co-defendants
and over twenty witnesses had been questioned and over fifteen expert
examinations had been carried out); on a number of occasions the
hearings had been adjourned owing to the non-attendance of witnesses,
jurors or defendants.
- The
applicant maintained his complaint. He pointed out that in
calculating the length of the criminal proceedings against him the
Government had failed to take into account the time when the case was
pending before the appeal court. He further submitted that the
failure of the defendants to appear was attributable exclusively to
the domestic authorities, which had failed to organise their transfer
to the courthouse. As to the non-attendance of jurors, the applicant
submitted that on two occasions the jurors who had failed to appear
had been replaced with substitute jurors, a fact reflected in the
record of the trial. Hence, the Government’s reference to the
adjournments allegedly caused by the non attendance of jurors
was not valid.
B. The Court’s assessment
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention and is not
inadmissible on any other grounds. It must therefore be declared
admissible.
2. Merits
(a) Period to be taken into consideration
- The
Court reiterates that the period to be taken into consideration in
determining the length of criminal proceedings begins with the day on
which a person is “charged” within the autonomous meaning
to be given to that term. It ends with the day on which a charge is
finally determined or the proceedings are terminated. The “charge”,
for the purposes of Article 6 § 1, may be defined as “the
official notification given to an individual by the competent
authority of an allegation that he has committed a criminal offence”,
a definition that also corresponds to the test of whether “the
situation of the [suspect] has been substantially affected”
(see, most recently, Vladimir Krivonosov v. Russia, no.
7772/04, § 147, 15 July 2010).
- The
Court further observes that only those periods when the case was
actually pending before the courts should be taken into account, that
is, the periods when there was no judgment in the determination of
the criminal charge against the applicant and when the authorities
were under an obligation to give such a judgment (see, by analogy,
Barantseva v. Russia, no. 22721/04, § 47, 4 March 2010,
and Ignatyeva v. Russia, no. 10277/05, § 34, 3 April
2008).
- It
follows that in the present case the proceedings against the
applicant remained pending during two periods. The first period began
on the date of the applicant’s arrest on 16 April 2005, when he
was first affected by the “charges” against him, and
ended on 15 May 2008, when the judgment of 6 November 2007 was upheld
on appeal. The second period started to run on 25 February 2009, when
the appeal decision of 15 May 2008 was quashed by way of supervisory
review, and ended on 23 July 2009, when the new appeal decision was
taken by the Supreme Court. Therefore, the period to be taken into
consideration lasted for almost three and a half years. This period
spanned the investigation stage and two levels of jurisdiction.
(b) Reasonableness of the length of
proceedings
- The
Court reiterates that the reasonableness of the length of the
proceedings is to be assessed in the light of the particular
circumstances of the case, regard being had to the criteria laid down
in the Court’s case-law – in particular, the complexity
of the case, the applicant’s conduct and the conduct of the
competent authorities. On the latter point, what is at stake for the
applicant also has to be taken into consideration (see, most
recently, Vladimir Krivonosov, cited above, § 149, with
further references).
- The
Court accepts that the present case, involving five co defendants
and multiple serious charges, was rather complex.
- Regarding
the applicant’s conduct, the Court cannot discern any delay in
the proceedings attributable to the applicant. The non-attendance of
co-defendants, all detained in custody, cited by the Government as
one of the reasons for the adjournment of the hearings, cannot be
imputed to the applicant as the appearance of his co-defendants
before the court was dependent on the domestic authorities in charge
of their transport from the detention facility to the courthouse.
- Turning
to the conduct of the domestic authorities, the Court notes that from
April 2005 to June 2006 the case was being investigated by the
investigating authorities and that from December 2006 to November
2007 it was being examined by the trial court. Both periods appear
reasonable. The Court further notes that it took the domestic court
about five months to examine the applicant’s conviction on
appeal for the first time and another five months to re examine
the case on appeal after the quashing of the initial appeal decision
in supervisory review proceedings. This length of time does not seem
to be unreasonable. It appears, therefore, that the only delay in the
proceedings against the applicant for which the domestic authorities
could be criticised was the one which occurred from June 2006 to
December 2006 as a result of the trial court’s abortive attempt
to resubmit the case to the public prosecutor for amendment of the
bill of indictment. In the Court’s view, however, this delay by
itself was not such as to prolong the proceedings in question beyond
what can be considered to be a reasonable time for the examination of
the case.
- Having
regard to the foregoing, the Court considers that the length of the
proceedings in the present case did not exceed the “reasonable
time” requirement. There has therefore been no breach of
Article 6 § 1 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Finally,
the applicant submitted a number of additional complaints under
Article 6 of the Convention relating to his trial.
- Having
regard to all the material in its possession, and in so far as these
complaints fall within its competence, the Court finds that there is
no 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 manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of the Convention.
V. 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 30,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government submitted that the claim was excessive.
- The
Court notes that it has found a combination of serious violations in
the present case. The applicant was detained in inhuman and degrading
conditions. He was further ill-treated while in custody and the
domestic authorities failed to carry out a prompt and effective
investigation. In these circumstances, the Court considers that the
applicant’s suffering and frustration cannot be compensated for
by the mere finding of a violation. Making its assessment on an
equitable basis, the Court awards the applicant EUR 18,000 in respect
of non-pecuniary damage, plus any tax that may be chargeable to the
applicant on that amount.
B. Costs and expenses
- The applicant did not claim costs and expenses.
Accordingly, there is no call 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 admissible
(a) the
complaint under Article 3 concerning the conditions of the
applicant’s detention in detention facility IZ-47/1 in
St Petersburg;
(b) the
complaint under Article 13 concerning the absence of an effective
remedy in respect of the allegedly abject conditions of detention;
(c) the
complaint under Article 3 concerning the alleged ill-treatment on
28 October 2007 and failure to conduct a prompt and thorough
investigation into it;
(d) the
complaint under Article 6 § 1 concerning the length of the
criminal proceedings against the applicant;
and
the remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention on account of the conditions of the applicant’s
detention in detention facility IZ-47/1 in St Petersburg from 6 May
2005 to April 2008, and no violation on account of the conditions of
his detention in the above-mentioned facility from April 2008 to 7
September 2008 and from 7 June to 17 September 2009;
- Holds that there has been a violation of Article
13 of the Convention on account of the lack of an effective remedy
enabling the applicant to complain about the conditions of his
detention;
- Holds that there has been a violation of Article
3 of the Convention under its substantive and procedural limbs on
account of the applicant’s ill-treatment on 28 October 2007;
- Holds that there has been no violation of
Article 6 § 1 of the Convention on account of the length of the
proceedings against the applicant;
- 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 10 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy
Registrar President
